IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
TEXAS HEALTH AND HUMAN
SERVICES COMMISSION

§
§
§
Plaintiff,
§
§
v.
§ CIVIL ACTION NO. ______________
§
UNITED STATES OF AMERICA,
§
UNITED STATES DEPARTMENT
§
OF STATE, JOHN KERRY in his
§
Official Capacity as SECRETARY OF §
STATE, UNITED STATES
§
DEPARTMENT OF HEALTH &
§
HUMAN SERVICES,
§
SYLVIA BURWELL, in her Official
§
Capacity as SECRETARY OF
§
HEALTH AND HUMAN SERVICES, §
OFFICE OF REFUGEE
§
RESETTLEMENT, ROBERT CAREY, §
in his Official Capacity as Director
§
of the OFFICE OF REFUGEE
§
RESETTLEMENT, and
§
INTERNATIONAL RESCUE
§
COMMITTEE, INC.
§
§
Defendants.
§
PLAINTIFF’S VERIFIED ORIGINAL COMPLAINT FOR DECLARATORY
AND INJUNCTIVE RELIEF AND APPLICATION FOR TEMPORARY
RESTRAINING ORDER AND PRELIMINARY INJUNCTION
TO THE HONORABLE JUDGE OF SAID COURT:
The Texas Health and Human Services Commission (“Commission” or
“HHSC”) seeks declaratory and injunctive relief against the United States of
America, United States Department of State (“State Department”), John Kerry, in
Plaintiff’s Original Complaint for Declaratory and Injunctive Relief

Page 1

 his official capacity as Secretary of State, United States Department of Health and
Human Services (“Department”), Sylvia Burwell in her official capacity as Secretary
of Health and Human Services, Office of Refugee Resettlement (“ORR”), Robert
Carey, in his official capacity as Director of the Office of Refugee Resettlement
(collectively,

“Federal

Defendants”),

and

International

Rescue

Committee

(“Committee”), regarding the Federal Defendants and Committee’s actions in
resettling refugees in Texas without consulting with Texas or working in close
cooperation with the Commission as required by federal law and contracts with the
Committee.
I.
1.

PARTIES

Plaintiff is the Texas Health and Human Services Commission. The

Commission is the sole State agency responsible for the development and
administration of refugee resettlement services in Texas. For purposes of this suit,
the Commission represents the interests of the State of Texas.
2.

Defendants are the United States of America, United States

Department of State, John Kerry, in his official capacity as 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,
Robert Carey, in his official capacity as Director of the Office of Refugee Resettlement,
and International Rescue Committee the International Rescue Committee, Inc.
II.
3.

JURISDICTION AND VENUE

This Court has jurisdiction pursuant to 28 U.S.C. § 1331 because this

suit concerns breach of a statutory requirement under 8 U.S.C. § 1522 that the federal
government “consult regularly” with States concerning “the intended distribution of
refugees among the States . . . before their placement in those States” and that local
voluntary agency activities should be conducted “in close cooperation and advance
Plaintiff’s Original Complaint for Declaratory and Injunctive Relief

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 consultation” with State governments.
4.

The Plaintiff’s claims for declaratory and injunctive relief are authorized

by 28 U.S.C. §§ 2201 and 2202, by Rules 57 and 65 of the Federal Rules of Civil
Procedure, and by the general legal and equitable powers of this Court.
5.

Venue is proper under 28 U.S.C. § 1391(b)(2) because a substantial part

of the events giving rise to these claims occurred in the Northern District of Texas.
III.
6.

FACTUAL BACKGROUND

Texas accepts approximately 10 percent of all refugees resettled in the

United States––more than any other State. Texas performs this work by partnering
with local volunteer agencies to help refugees transition to the State and pay for
associated costs.
7.

The Refugee Act of 1980 establishes a framework for collaboration and

cooperation among the federal government, the States, and local volunteer agencies
such as the Committee in resettling refugees. Highlighting the role of the States is
the fact that section 1522 mentions States 14 times. Instead of adhering to that
statutory framework, the federal government and the Committee have left Texas
uninformed about refugees that could well pose a security risk to Texans and without
any say in the process of resettling these refugees.
8.

The Refugee Act of 1980 requires that the federal government “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) (emphases added).
9.

The Act further requires that, “in providing refugee assistance . . . local

voluntary agency activities should be conducted in close cooperation and advance
consultation with State and local governments.” Id. § 1522(a)(1)(B)(iii) (emphasis
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 added).
10.

In addition to Texas undertaking more than its share in the task of

resettling refugees than any other State, Texas has the sovereign authority and duty
to protect the safety of its residents. See, e.g., State v. Richards, 301 S.W.2d 597, 602
(Tex. 1957) (“As a general rule the [police] power is commensurate with, but does not
exceed, the duty to provide for the real needs of the people in their health, safety,
comfort and convenience . . . .”); Lombardo v. City of Dallas, 73 S.W.2d 475, 479 (Tex.
1934) (“[T]he police power of a state embraces regulations designed to . . . promote
the public health, the public morals, or the public safety.”). The Texas Legislature
established the Office of Immigration and Refugee Affairs in the Commission to
“ensure coordination of public and private resources in refugee resettlement.” TEX.
GOV’T CODE §§ 752.001, .003.
11.

As a baseline protection for such authority, federal law excludes

refugees who have provided material support to terrorists. 8 U.S.C. § 1182(a)(3)(B).
Previously, the President admitted less than 100 Syrian refugees per year. The
President announced a policy goal of admitting 10,000 Syrian refugees this fiscal
year.

To accomplish this goal, the President granted a waiver to refugees who

provided material support to terrorists if, among other things, the support was
“insignificant” and the refugee “poses no danger to the safety and security of the
United States.”

Exercise of Authority Under Section 212(d)(3)(B)(i) of the

Immigration and Nationality Act, 79 Fed. Reg. 6913 (Feb. 5, 2014).
12.

Members of the federal executive branch have expressed concern

regarding this massive expansion of refugees from an area engulfed in fighting with
ISIS. For example, the Director of the FBI recently told Congress that the federal
government cannot conduct effective security checks on Syrian nationals. Director
Comey testified that “we can query our databases until the cows come home but
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 nothing will show up because we have no record of that person.” U.S. House of
Representatives Committee on Homeland Security, Nation’s Top Security Officials’
Concerns

on

Refugee

Vetting

(Nov.

19,

2015),

available

at

https://homeland.house.gov/press/nations-top-security-officials-concerns-on-refugeevetting/.

The Assistant Director of the FBI’s Counterterrorism Division explained

his “concern is in Syria, the lack of our footprint on the ground in Syria, that the
databases won’t have information we need. So it’s not that we have a lack of process,
it’s that there is a lack of information.” U.S. House of Representatives Committee on
the Judiciary, Goodlatte: Why Does the President Ignore Concerns About Syrian
Refugees? (Oct. 27, 2015), available at http://judiciary.house.gov/index.cfm/pressreleases?ID=E0715056-77F0-4D8F-BA14-0FB1C1C4F7B4. The Director of National
Intelligence summed up the worries of these federal counterterrorism experts: “We
don’t obviously put it past the likes of ISIL to infiltrate operatives among these
refugees.” Nation’s Top Security Officials’ Concerns on Refugee Vetting, supra.
13.

In light of these concerns with the federal government massively

expanding the admission of refugees who have materially supported terrorists, the
Commission sent a letter to the Committee on November 19 asking it to apprise the
Commission if it currently had plans to resettle Syrian refugees in Texas and that
Texas, until further notice, will refuse to cooperate with the resettlement of any
Syrian refugees in Texas. See Ex. A. The letter copied the Director of the Texas
Department of Public Safety and the Deputy Director for Homeland Security and
Services in the Department of Public Safety. Id.
14.

In a phone call between the staff for the Committee and the Commission,

the Committee informed the Commission that it intends to resettle six Syrian
refugees in Dallas, Texas on Friday, December 4.
15.

Some news inquiries have questioned whether this resettlement could

Plaintiff’s Original Complaint for Declaratory and Injunctive Relief

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 occur as early as Thursday, December 3. The Commission requested information
regarding these refugees. The Committee responded that the State Department
informed it that the request must go through the State Department because the
information is not shareable by the Committee. The Commission requested the
information in expedited fashion from the appropriate federal entity under the State
Department on December 1. Ex. B.
16.

A letter from the Executive Commissioner to the Committee on

November 25 asked the Committee to contact the Commission by November 30 in
order to work together in close cooperation and avoid termination of the contract or
legal action. Ex. C. The Committee responded on November 30 and expressed an
intent to communicate with the Commission. Ex. D.
17.

In a letter to the Committee on December 1, the Commission asked the

Committee to temporarily halt resettlement of Syrian refugees in Texas “until we
have receive the requested information and our concerns with screening procedures
have been appropriately addressed.” Ex. H. The letter asked the Committee to
confirm by 3pm on December 2 its intent to cooperate with the State. The Committee
responded with its intention to continue working with the federal government to
resettle Syrians in Texas. Ex. I.
IV.

CLAIMS FOR RELIEF

COUNT I
Declaratory Judgment Under 28 U.S.C. §§ 2201-2202 that
the Federal Defendants Have Failed to Consult Regularly with Texas
Regarding the Intended Distribution of Refugees to Texas Before
Placement in Texas
18.

The Commission incorporates the allegations contained in paragraphs 1

through 17 as if fully set forth herein.
19.

The Refugee Act of 1980 requires that the federal government “shall

consult regularly (not less often than quarterly) with State and local governments
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 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) (emphases added).
20.

The Federal Defendants have breached this statutory duty of advance

consultation with Texas by: 1) preventing Texas from receiving vital information to
assess the security risk posed by the refugees in advance of their arrival, and
2) refusing to consult with the State in advance on placement of refugees in Texas.
COUNT II
Declaratory Judgment Under 28 U.S.C. §§ 2201-2202 that
the Committee Has Failed Breached a Contractual Duty to Work in Close
Cooperation and Advance Consultation with Texas Before Placing
Refugees in Texas
21.

The Commission incorporates the allegations contained in paragraphs 1

through 20 as if fully set forth herein.
22.

The Refugee Act of 1980 requires that, “in providing refugee assistance

. . . local voluntary agency activities should be conducted in close cooperation and
advance consultation with State and local governments.” 8 U.S.C. § 1522(a)(1)(B)(iii)
(emphasis added).
23.

The Committee is a local volunteer agency under the meaning of the

Refuge Act of 1980.
24.

The Commission entered into an agreement with the Committee to

provide for refugee cash assistance, Ex. A at 11 (hereinafter “Refugee Cash Assistance
Agreement”) and an agreement to provide for refugee social services, Ex. B at 11
(hereinafter “Refugee Social Services Agreement”). Both contracts were entered into
for good and valuable consideration.
25.

Both contracts require the Committee to “[p]rovide services . . . [i]n

compliance with this contract and with applicable Federal laws and regulation, state
laws and regulations, and Commission policies including service delivery standards.”
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 Ex. J at 5; Ex. K at 5. This necessarily includes the requirement in the Refugee Act
of 1980 that the Committee work “in close cooperation and advance consultation” with
the Commission. 8 U.S.C. § 1522(a)(1)(B)(iii).
26.

The Committee announced its intent to continue to work with the

federal government to resettle Syrians in Texas and is following instructions from the
Federal Defendants to not provide information to the Commission or consult with the
Commission in advance of resettling Syrian refugees in Texas.
27.

Additionally, according to the cooperation clause in the contracts:

The [Committee] must cooperate fully and allow [the Commission] and all
appropriate federal and state agencies or their representative’s access to client
records, books, and supporting documents pertaining to services provided.
[The Committee] must make documents available at reasonable times and for
reasonable periods for the purpose of inspection, monitoring, auditing, or
evaluating.
Ex. J at 1; Ex. K at 11. This Committee’s conduct is a failure to adhere to this
contractual requirement that prevents the State from exercising its police power to
protect the safety of its residents.
28.

Pursuant to the Commission’s Uniform Terms and Conditions,

incorporated into the contracts by reference, Ex. J at 7; Ex. K at 7, the Committee:
acknowledges that, if [it] breaches (or attempts or threatens to
breach) its obligations under this Agreement, the State will be
irreparably harmed. . . . If a court of competent jurisdiction finds that
[the Committee] breached (or attempted or threatened to breach) any
such obligations, [the Committee] agrees that any additional findings of
irreparable injury or other conditions to injunctive relief, it will not
oppose the entry of an appropriate order compelling performance by [the
Committee] and restraining it from any further breaches (or attempted
or threatened breaches).
Ex. L at 22 (emphases added).
29.

Accordingly, the Committee has admitted that its actions at the

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 instruction of the Federal Defendants, if the actions fail to comply with the contracts,
will cause the State irreparable harm and the appropriate remedy is an order from
the Court compelling the Committee work “in close cooperation and advance
consultation” with the Commission on the resettlement of any Syrian refugees and to
share its information that the Commission has requested and may request in the
future.
30.
V.

All conditions precedent have been performed or have occurred.
APPLICATION FOR TEMPORARY RESTRAINING ORDER AND
PRELIMINARY INJUNCTION

1.

The Commission seeks a temporary restraining order and a preliminary

injunction pursuant to Federal Rule of Civil Procedure 65.

In particular, the

Commission requests the Court to preliminarily enjoin and/or stay any and all
activities of the Defendants regarding placement of Syrian refugees in Texas unless
and until the Defendants have complied with their aforementioned statutory and
contractual obligations of consulting with Texas before placement and sharing
information and working in close cooperation and advance consultation with the
Commission.
2.

The Commission also seeks to preserve the status quo pending this

Court’s final adjudication on declaratory judgment claims, the status quo being that,
at present, the aforementioned refugees have yet to enter or establish residency in
the State of Texas.

Given the Defendants’ lack of providing basic information

regarding refugees to be placed in Texas, the Commission maintains a reasonable
concern that the Committee may continue to operate with an unwillingness to consult
in advance regarding placement of refugees in Texas or share information, closely
cooperate, and consult in advance with the Commission.
3.

The requirements for showing entitlement to a temporary restraining

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 order and preliminary injunction under Federal Rule of Civil Procedure 65 are
identical. See Clark v. Prichard, 812 F.2d 991, 993 (5th Cir. 1987). To obtain a
temporary restraining order and a preliminary injunction, the Commission must
show:
A. there is a substantial likelihood that the Commission will prevail on the
merits;
B. there is a substantial threat that irreparable injury will result if the
injunction is not granted;
C. the threatened injury outweighs the threatened harm to the Defendants; and
D. granting the preliminary injunction will not disserve the public interest.
Janvey v. Alguire, 647 F.3d 585, 595 (5th Cir. 2011); Canal Auth. of Florida v.
Callaway, 489 F.2d 567, 572 (5th Cir. 1974).
A.

There is a substantial likelihood that the Plaintiff will prevail.
4.

For the reasons articulated in the Original Complaint, Plaintiff has

demonstrated Defendants’ breach of statutory and contractual duties by their
unwillingness to consult in advance regarding placement of refugees in Texas or
share information and closely cooperate with the Commission. Whatever “advance
consultation” and “close cooperation” mean, this is not it.
5.

Further, the right of the Plaintiff to seek relief in this Court due to the

failure of performance by the Committee is expressly provided in the contract
between the parties.
B.

There is a substantial threat that irreparable injury will result.
6.

On or about Thursday, December 3 or Friday, December 4, a group of

Syrian refugees are scheduled to arrive in Texas.

Plans for the settlement of

additional refugees may be underway. As mentioned herein, Plaintiff possesses
reasonable concerns about the safety and security of the citizenry of the State of Texas
Plaintiff’s Original Complaint for Declaratory and Injunctive Relief

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 regarding these refugees that may seek resettlement within the State of Texas. The
safety and security of the citizenry is the rightful concern of the sovereign and one of
the many reasons why Plaintiff maintains an ongoing right to full cooperation,
communication, collaboration, and candor with Defendants regarding its efforts in
resettling foreign nationals amongst the Texas citizenry.
C.

The threatened injury to Plaintiff and the State’s citizenry
outweighs any threatened harm to Defendants.

7.

As stated above, Plaintiff has reasonable concerns about the safety and

security of the State’s citizens as a result of this week’s anticipated resettlement of
certain refugees. Plaintiff also is concerned that Defendants will continue refusing
to consult in advance and to share information and work in close cooperation with
Plaintiff as it pertains to the resettlement of refugees in the State, thus causing
further injury.
8.

The threatened harm to Plaintiff outweighs any harm to Defendants

from a temporary halt of certain refugees pending a determination of whether
Defendants are complying with their statutory and contractual obligations to consult
in advance with the State on the resettlement of refugees in the State.
E.

9.

A temporary restraining order and a preliminary injunction
will not disserve the public interest.
A TRO and a preliminary injunction would allow Texas to exercise its

sovereign authority and duty to protect the safety of its residents, thus serving the
public interest.
10.

Granting the preliminary injunction will maintain the status quo until

the rights and duties of the parties can be finally adjudicated.

Plaintiff’s Original Complaint for Declaratory and Injunctive Relief

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 V.

PRAYER FOR RELIEF

The Commission respectfully petitions the Court to award the following relief
against the Defendants:
A.

An ex parte Temporary Restraining Order under Federal Rule of Civil
Procedure 65(b) preventing the Defendants from resettling refugees to
Texas until December 9 due to their violations of statutory duty to
consult with the State in advance of placing refugees in Texas and
statutory and contractual duty to provide information to the
Commission and work in close cooperation with the Commission;

B.

A hearing on the Motion for Preliminary Injunction no later than
December 9.

C.

A Preliminary Injunction preventing the Defendants from resettling
Syrian refugees to Texas until the Court determines that Defendants
are complying with their statutory and contractual duties to consult
with Texas in advance of placing refugees and to provide information to
the Commission and work in close cooperation with the Commission;

D.

A declaration that the Defendants have breached their statutory and
contractual duties to the State;

E.

A permanent injunction compelling the Defendants to comply with their
statutory and contractual duties to the State;

F.

Reasonable and necessary attorney’s fees for the Plaintiff; and

G.

Such other and further relief to which the Plaintiff is justly entitled at
law and in equity.

Plaintiff’s Original Complaint for Declaratory and Injunctive Relief

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 Dated:

December 2, 2015.
Respectfully submitted,
KEN PAXTON
Attorney General of Texas
CHARLES E. ROY
First Assistant Attorney General
BRANTLEY STARR
Deputy Attorney General for Legal
Counsel
/s/ Austin R. Nimocks
AUSTIN R. NIMOCKS
Associate Deputy Attorney General for
Special Litigation
Texas Bar No. 24002695
ANGELA V. COLMENERO
Division Chief – General Litigation
ADAM N. BITTER
Assistant Attorney General
General Litigation Division
P.O. Box 12548, Capitol Station
Austin, Texas 78711-2548
ATTORNEYS FOR PLAINTIFF

Plaintiff’s Original Complaint for Declaratory and Injunctive Relief

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