Seeger v. United States Department of Defense ( 2018 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
__________________________________
)
MATTHEW SEEGER, et al., )
)
Plaintiffs, )
)
v. ) Civil Action No. 17-639 (RMC)
)
UNITED STATES DEPARTMENT )
OF DEFENSE, et al., )
)
Defendants. )
_________________________________ )
MEMORANDUM OPINION
Major Matthew Seeger of the United States Army, Michael Schwartz, Cheryl
Bormann, and Edwin Perry are lawyers employed by the United States Department of Defense
(DoD) who represent detainees before a military commission at U.S. Naval Station Guantanamo
Bay, Cuba (NSGB). They bring this action under the Administrative Procedure Act (APA), 5
U.S.C. §§ 500 et seq (2012). They allege that DoD, the U.S. Navy, and the Director of the
Office of Military Commissions and Convening Authority have failed to investigate adequately
environmental hazards, including airborne formaldehyde and other carcinogens, present at Camp
Justice, where Plaintiffs are assigned to work and in some cases sleep while at Guantanamo Bay.
They further allege that Navy’s investigation into these alleged hazards was incomplete and
flawed, rendering arbitrary and capricious DoD’s conclusions that Plaintiffs can continue safely
to live and work at Camp Justice. Plaintiffs ask the Court to require further investigation of the
alleged hazard mitigation, as well as alternative living and working facilities until that is done,
for which they seek a preliminary injunction until this litigation concludes.
1
Because the issuance of a Final Report, which is now public, renders Plaintiffs’
complaint of unreasonable delay moot, the Court will dismiss Counts Two and Three. However,
because Defendants’ orders that Plaintiffs live and work in the allegedly contaminated areas are
final actions subject to review under the APA, the Court will deny Defendants’ Motion to
Dismiss Count One. Plaintiffs’ Motion for a Preliminary Injunction will be denied because
Plaintiffs have not adequately demonstrated that they are likely to succeed on the merits or that
they are likely to suffer irreparable harm if a preliminary injunction is not granted.
I. BACKGROUND
A. Camp Justice and Potential Environmental Hazards
Camp Justice is a complex at NSGB that was built in 2007 on the site of a former
airfield. It serves as the location of the Office of Military Commissions Office of the Convening
Authority (OMC). See Compl. ¶ 19 [Dkt. 1].1 Within Camp Justice is a fenced area called the
Expeditionary Legal Complex (ELC) which includes a Secure Compartmented Information
Facility (SCIF), at which most of the intensive work of the OMC occurs due to the classified
nature of the underlying information. The ELC is comprised of several structures: a sheet metal
structure (ELC-1) that contains a courtroom and office areas; three trailers (ELC-3, ELC-4, ELC-
5) that function as office spaces; and three CONEX shipping containers (ELC-8, ELC-9, ELC-
10). See Ex. 17, Motion for Preliminary Injunction, Indoor Air Quality Assessment Report [Dkt.
4-19] at 1-4. Camp Justice includes three additional workspaces outside the ELC: Buildings
1
“The Office of the Convening Authority is responsible for the overall management of the
military commissions process, including logistics and personnel support. The Convening
Authority is empowered to convene military commissions, refer charges to trial, negotiate pre-
trial agreements, and review records of trial.” Office of Military Commissions Organization
Overview, http://www.mc.mil/ABOUTUS/OrganizationOverview.aspx (last visited Mar. 29,
2018).
2
AV-29 and AV-34, which are fixed structures, and AV-32, a former hangar. See id. at 1-3. Most
of Plaintiffs’ work is done in the SCIF, which is inside prefabricated structures that Plaintiffs
allege to be contaminated. See Tr. of Prelim. Inj. Hr’g (PI Tr.) [Dkt. 30] at 18 (testimony of
Major Seeger regarding structures of ELC). Plaintiffs also have dedicated office space in AV-
34, outside the ELC, but that is a less convenient space, and Plaintiffs use it less frequently than
spaces within the ELC, because classified documentation cannot be taken outside the SCIF. Id.Personnel housing units under OMC’s direct control within Camp Justice are
primarily located in Containerized Housing Units, also known as CHUs or “Cuzcos.” Fifty of
the Cuzcos provide housing; they are air-conditioned trailers, each with two single bedrooms and
a shared bathroom, comprising 100 beds total. OMC can also house personnel in 360 beds in
air-conditioned tents with plywood floors. Of these, 60 beds are in “improved” tents with
partitions and the other 300 are cots rather than beds. Both the Cuzcos and the tents are located
on what used to be an aircraft runway called McCalla Field, made of asphalt. OMC also rents
four nearby transient-housing townhomes from the NSGB Commanding Officer, two each for
prosecution and defense trial teams (predominately used during trial). Other convenient on-base
housing options include 202 beds managed by Navy Gateway Inns & Suites (NGIS), as well
rooms at the Navy Lodge. See Defs.’ Opp’n to Pls.’ Appl. for a Prelim. Inj. and Mot. to Dismiss
(Mot. to Dismiss) [Dkt. 10] at 8-10 (describing the on-base housing options). While some
Plaintiffs have stayed in these facilities during work trips, availability is not guaranteed and
demand can sometimes outstrip capacity.
In addition, OMC can use 53 beds, to the extent they are available, in Building
AV-624, a permanent structure on the opposite, or leeward, side of Guantanamo Bay, that is, the
physical water inlet for which the Naval Station is named, from the ELC. Transportation to AV-
3
624 is relatively inconvenient, because access is by ferry only and takes approximately 25
minutes. Plaintiffs argue that their ability to work would be severely hindered if they were
forced to stay on the leeward side of the bay, in particular because much of their work must be
done in or near the SCIF, and ferry service is limited. See PI Tr. at 32 (Plaintiffs’ counsel
arguing that “[i]t’s not the New York Subway. So for folks who are working very long days, it
cuts down on the amount of time they can work while they’re there.”).
OMC’s Housing Policy, issued on May 19, 2011, requires “all OMC personnel”
and contractors to stay in the Cuzcos or tents at Camp Justice. See Mot. to Dismiss at 9.
Although the lead counsel representing detainees who are charged with capital crimes are
considered contractors, they are exempt from the requirement that they stay in the Cuzcos or
tents, under an exception in the policy that permits members of prosecution and defense trial
teams to stay in the four townhouses. Id. Other limited exceptions have been made on a case-
by-case basis and “in an ad hoc manner based upon requests,” including requests from the
Military Commissions Defense Organization for trial team members to stay in other NSGB
housing when available. Id.2 Members of trial teams who are also enlisted military are not
eligible for these exceptions. In practice, Ms. Bormann, Mr. Schwartz, and Mr. Perry have
stayed in preferred “hard housing,” such as the Navy Lodge, for all or most of their trips to
NSGB since 2014; Major Seeger, as an Army officer, is always required to stay in the Cuzcos.
PI Tr. at 44-47. To receive a housing assignment, the prospective traveler submits a request to
OMC, which then assigns housing based on the request, availability, and other demands.
Plaintiffs allege that the Navy “assigns a lower priority to providing hard housing to military
2
Other individuals connected to the work of the OMC, “such as the Military Judge, witnesses,
in-court simultaneous translators, and victims and family members,” are not required to stay in
OMC housing and have the option of requesting base housing through NSGB personnel. Id.4
commissions personnel than to other individuals residing at the Naval Station, such as base
contractors, visitors, and other temporary personnel.” Compl. at ¶ 27.
At the heart of their case, Plaintiffs complain that Camp Justice is contaminated
with cancer-causing and otherwise hazardous chemicals and other materials including
formaldehyde, benzo(a)pyrene, asbestos, lead-based paint, and mold. During a discovery
teleconference on June 23, 2017, Plaintiffs’ attorneys indicated that the primary hazard at issue is
airborne formaldehyde, which allegedly leaches out of materials in modular units at Camp
Justice. Plaintiffs report, and Defendants do not contest, that the Environmental Protection
Agency (EPA) has classified formaldehyde as a “probable human carcinogen.” Pls.’ Mem. in
Support of Mot. for Prelim. Inj. (Mot. PI) [Dkt. 4-1] at 6.
B. The Navy’s Investigation into Environmental Hazards at Camp Justice
Following an initial complaint about potential environmental hazards, the Navy
undertook a multi-step process, comprising repeated site visits and several reports prepared both
internally and by external consultants. Beginning in August 2015, the Navy conducted a
“preliminary investigation” at Camp Justice, including a review of available documents
concerning prior use, a walk-through, and air sampling; it concluded that “the buildings, tents,
and trailers where people live and work are habitable for occupancy.” Mot. PI, Ex. 16,
NMCPHC, Public Health Report for Camp Justice (Aug. 21, 2015) [Dkt. 4-18] at 4. While the
Navy did not find any immediate health risks, it did determine that there were “data gaps,”
particularly related to exposure to carcinogens, which did not render the buildings uninhabitable
but did warrant further environmental sampling and analysis. Id.The Navy and Marine Corps Public Health Center (NMCPHC) continued to
investigate. In October 2015, it conducted sampling at Camp Justice and tested the samples for
5
known toxins including formaldehyde. The samples in question were taken in workspaces—
Buildings AV-29 and AV-32 and spaces in the ELC—and in 16 of the 50 Cuzcos used as living
spaces. See Mot. for PI at 6-7; Mot. PI, Ex. 3, Expert Report of Dr. Mark A. Killen (Killen
Report) [Dkt. 4-5] at 9.3 DoD characterizes this stage of testing as incorporating various
“conservative” measures of potential harm such as “EPA screening levels . . . and OSHA
permissible exposure limits,” or PELs. Mot. to Dismiss at 4. Some samples tested at higher
concentrations than these “conservative” screening levels, although the Final Report stated that
they were all under the minimum “likely to be a human carcinogen” established by the World
Health Organization (WHO). NMCPHC, Final Public Health Review Report, Camp Justice,
Naval Station Guantanamo Bay, Cuba (Mar. 3, 2017) (Final Report) [Dkt. 14] at 61.
As the Final Report acknowledges, the WHO standard is significantly less
stringent than EPA standards. Id. at 60-61. The Navy contends that the EPA standard for
noncancer risks—7.8 parts per billion (ppb)—is so very low that any measurement of
formaldehyde that shows a concentration lower than 7.8 ppb establishes essentially no risk, while
measurements above 7.8 may or may not indicate risk. Id. at 60. According to the Final Report,
WHO standards establish that any indoor-air formaldehyde value under 100 ppb is “considered
safe for the entire population against sensory irritation,” and that any value under 80 ppb is “not
likely to be a human carcinogen.” Id. at 61. “Indoor air concentrations of formaldehyde at
3
Diagrams, included in one of the reports prepared for the Navy by consulting experts, report
indicate that air samples were taken from 16 of the 50 Cuzcos, each from one of the two sleeping
areas in each Cuzco. See NMCPHC, Final Public Health Review Report: Camp Justice, Naval
Station Guantanamo Bay, Cuba (Mar. 3, 2017) [Dkt. 14], App’x L, Resolution Consultants
Supplemental Environmental Investigation for the Formaldehyde Sampling Results (May 6,
2016) (May 2016 Resolution Supplemental Formaldehyde Results) [Dkt. 14-47] at 12-13. In his
report, Plaintiffs’ expert states that “84 CUZCOs located at Camp Justice were never tested”; it
would have been more accurate to say that 34 out of the 50 Cuzcos, or 84 out of the 100 Cuzco
bedrooms, were not tested. Killen Report at 9.
6
Camp Justice ranged from 1.9 to 61 ppb and the average concentration was 15.4 ppb.” Id. at 61.
In other words, the values were well below WHO levels for noncancer and cancer risks, but
averaged above the EPA screening levels.
The Navy insists that tests showing screening levels in excess of initial EPA
standards did not establish a clear risk, but was only a signal that further investigation was
warranted. Indeed, the record demonstrates that the Navy undertook further investigation and
remediation measures following the initial testing. Plaintiffs’ expert, Dr. Mark A. Killen, who
holds degrees in civil, agricultural, and chemical engineering and is a licensed environmental
engineer, characterized these initial results as exceeding “the EPA nine month resident cancer
exposure risk.” Killen Report at 9.
Resolution Consultants, a contractor hired by the Navy to examine air quality in
the Cuzcos, issued an “Indoor Air Quality Assessment Report” in January 2016. Mot. PI, Ex. 17,
Indoor Air Quality Assessment Report (Jan. 12, 2016) [Dkt. 4-19]. In this January 2016
assessment, the consultants recommended asbestos sampling, cleaning ceiling light covers and a
closet ceiling and wall where excessive moisture or suspected microbial growth had been
observed, actions to reduce moisture and humidity levels, and an inspection of heating,
ventilation, and air conditioning (HVAC) systems to address low airflow. Id. at 22-23 (chapter
4.0). Plaintiffs complain that the Navy “has never suggested in any of its subsequent reports that
it has taken any of the recommended steps.” Mot. PI at 13.
Shortly thereafter, in February 2016, NMCPHC published the results of a
“preliminary public health screening risk assessment,” which had found that levels of certain
toxins measured in indoor air in certain structures, including some Cuzcos, “were of potential
concern and warranted further evaluation.” Final Report at 6. The toxins of potential concern
7
included formaldehyde. Id. Specifically, the Navy had concluded that formaldehyde levels in
the Cuzcos were “of potential concern” because, although below applicable limits set by the
Occupational Safety and Health Administration (OSHA) for U.S. workplaces, further study was
needed to “take into consideration risks related to multiple constituents and pathways of
exposure.” Final Report App’x H, NMCPHC Preliminary Public Health Screening Risk
Assessment Report for Camp Justice (Feb. 23, 2016) (February 2016 Navy Preliminary
Assessment) [Dkt. 14-32] at 4. The February 2016 Navy Preliminary Assessment recommended
certain actions, which were taken, to improve HVAC systems in modular buildings in order to
remediate airborne formaldehyde; their experts determined that formaldehyde levels had been
reduced and did not pose a health risk to occupants of the structures in question. See PI Tr. at
40-41. The Navy had previously concluded that it was safe for people to live and work at Camp
Justice in the meantime. See Final Report at 26.
On April 7, 2016, Resolution Consultants issued its “Overseas Baseline
Environmental Assessment Report,” which assessed the site’s historic use as an airfield and
concluded that environmental conditions at Camp Justice were acceptable for its current uses.
Mot. to Dismiss at 4-5. On April 11, 2017, Resolution Consultants completed its
“Environmental Investigation Report” (EIR), which included the results of extensive
environmental sampling and site visits. Id. at 5. Resolution Consultants also reported the results
of follow-up air sampling of formaldehyde levels in May 2016. See May 2016 Resolution
Supplemental Formaldehyde Results. Based on these and other testing results, Defendants’
expert Dr. Paul B. Gillooly, the Navy’s experienced Health Risk Assessor and an expert in
industrial hygiene and occupational safety, concluded that there was “[n]o evidence that there are
complete exposure pathways (air, water[,] soil) resulting in risks to carcinogens above the
8
acceptable risk range established by the [EPA].” Mot. to Dismiss, Ex. 1, Declaration of Paul B.
Gillooly (Gillooly Decl.) [Dkt. 10-1] at 11.
Finally, in March 2017, NMCPHC completed its Final Public Health Review
Report, which was filed with the Court under seal on May 25, 2017, and is now public. See Final
Report.4 The Report assessed the historic uses of the Camp Justice location, analyzed
environmental sampling, and included a review of relevant medical records of personnel who
have been stationed at Camp Justice since 2004. Taking these findings and risk factors into
account, the Navy’s Final Report concluded that “[c]urrent and future potential cancer risks
related to environmental sources within Camp Justice . . . were within the [EPA] acceptable risk
range of 1E-06 to 1E-04 (e.g., 1 in 1,000,000 to 1 in 10,000). The cumulative cancer risk for
Camp Justice for all [chemicals of potential concern] ranged from 1.2E-07 to 6.1E-05.” Final
Report at 7.
The Final Report further noted that sampling conducted in April 2016, during the
course of the investigation, confirmed that HVAC modifications and other recent risk-
management actions had effectively reduced formaldehyde exposure risks. See Final Report at
28; see generally Final Report App’x F, Status of Previous Public Health Review Risk
Management Recommendations (Feb. 2017) (App’x F Status Report) [Dkt. 14-30] (describing
the recommendations and modifications made to date). The Navy also determined that
formaldehyde levels in the Cuzcos were comparable to those considered typical by the Centers
for Disease Control and Prevention (CDC) for similar housing structures, such as mobile homes
constructed of the same materials, in the United States. See PI Tr. at 40-41; Final Report at 59.
4
The Final Report was ultimately released to the public and is available at
https://www.cnic.navy.mil/regions/cnrse/installations/ns_guantanamo_bay/om/environmental_su
pport/Guantanamo_Bay_PHR.html (last visited Mar. 27, 2018).
9
C. Procedural Background
Plaintiffs bring the following causes of action in their Complaint:
Count One: Plaintiffs allege that DoD violated the APA by
arbitrarily and capriciously deciding that Camp Justice is safe and
habitable, based on an inadequate investigation.
Count Two: Plaintiffs allege that DoD violated the APA by
unreasonably delaying the completion of an adequate risk
assessment and also delaying the implementation of adequate
controls to address environmental contamination and other
unhealthy conditions at Camp Justice.
Count Three: Plaintiffs ask the Court to issue a writ of mandamus
requiring Defendants to complete the investigation and risk
assessment and implement appropriate remediation measures at
Camp Justice.
Compl. ¶¶ 129-39.5 Plaintiffs allege that the Navy’s investigation and conclusions violate Navy
and DoD Directives, Instructions, and other internal policies and guidelines, in particular DoD
Instruction (DoDI) 6055.01, which governs DoD’s safety and occupational health program. See
Compl. ¶ 66.
Related to these allegations, Plaintiffs ask the Court to: (1) declare that
Defendants’ decisions regarding the safety and habitability of Camp Justice are arbitrary and
capricious and set them aside; (2) order Defendants to conduct a thorough and timely
investigation and risk assessment; (3) order Defendants to implement appropriate remediation on
a timely basis; (4) enjoin Defendants from assigning Plaintiffs to live or work at Camp Justice
until—after a proper investigation, risk assessment, and appropriate remediation—it is found to
be safe and habitable; (5) retain jurisdiction to monitor and enforce compliance; and (6) award
attorneys’ fees and costs. Compl. at 38.
5
The Complaint lists these claims as the first, second, and third “Cause of Action.” For the sake
of verbal economy, this Opinion will refer to them as Counts One, Two, and Three throughout.
10
Plaintiffs filed their Complaint on April 11, 2017, and, three days later, moved for
a preliminary injunction to require provision of alternative accommodations pending the
outcome of this lawsuit. See Mot. PI.6 At the Court’s hearing on Plaintiffs’ motion for a
preliminary injunction on July 26, 2017, the Court requested supplemental briefing on its
subject-matter jurisdiction. See 7/27/2017 Minute Order (setting schedule for supplemental
briefing). The parties filed supplemental briefs on jurisdiction. The Motion to Dismiss and
Motion for a Preliminary Injunction are ripe for review. Because briefing on the Motion to
Dismiss was completed before the hearing on the Motion for a Preliminary Injunction, the Court
considers both motions in this Opinion.7
II. LEGAL STANDARDS
A. Motion to Dismiss
1. Rule 12(b)(1)—Lack of Subject-Matter Jurisdiction
a. Federal-Question Jurisdiction
The APA does not confer subject-matter jurisdiction on a district court. Rather, a
court has subject-matter jurisdiction over an APA claim if (1) the claim alleges a violation of
another statute, which in turn confers jurisdiction, or (2) the claim raises a federal question under
28 U.S.C. § 1331. Califano v. Sanders, 430 U.S. 99, 105-06 (1977). The Court sought
6
Defendants moved to dismiss the Complaint and opposed Plaintiffs’ motion for a preliminary
injunction. Mot. to Dismiss [Dkt. 10]. Plaintiffs opposed. Pls.’ Opp’n to Defs.’ Mot. to Dismiss
(Opp’n) [Dkt. 26]. Defendants replied. Defs.’ Reply to Opp’n to Mot. to Dismiss (Reply) [Dkt.
29]. As requested by the Court, both parties further briefed jurisdiction. See Pls.’ Brief
Regarding Subject-Matter Jurisdiction (Pls.’ Juris. Br.) [Dkt. 32]; Defs.’ Response to Pls.’
Supplemental Br. on Jurisdiction (Defs.’ Juris. Br.) [Dkt. 34].
7
The Court apologizes to the parties for the delay in this Opinion due to illness that prevented
an earlier decision.
11
supplemental briefing on subject-matter jurisdiction, which has clarified its jurisdiction for the
record.
The federal-question statute provides that “[t]he district courts shall have original
jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United
States,” 28 U.S.C. § 1331, and thus it “confer[s] jurisdiction on federal courts to review agency
action.” Oryszak v. Sullivan, 576 F.3d 522, 525 (D.C. Cir. 2009) (quoting Califano, 430 U.S. at
105); see also Megapulse, Inc. v. Lewis, 672 F.2d 959, 966 n.30 (D.C. Cir. 1982) (“Even though
the APA itself technically grants no jurisdiction, power to review any agency action under the
APA exists under 28 U.S.C. § 1331.”) (citing Califano, 430 U.S. at 97); Robbins v. Reagan, 780
F.2d 37, 42 (D.C. Cir. 1985) (“Section 1331 vests jurisdiction to review agency action in the
district court.”). The D.C. Circuit has held that “[i]t is clear that the APA ‘suppl[ies] a generic
cause of action in favor of persons aggrieved by agency action.’” Trudeau v. FTC, 456 F.3d 178,
188 (D.C. Cir. 2006) (quoting Md. Dep’t of Human Res. v. Dep’t of Health & Human Servs., 763
F.2d 1441, 1445 n.1 (D.C. Cir. 1985)). Thus, while many APA claims are brought pursuant to a
separate substantive statute, a court may alternatively have jurisdiction under Section 1331 over
a claim under the APA, based on allegations that an agency action was arbitrary and capricious
or that an agency took action without observing procedures required by law. See, e.g., Trudeau,
456 F.3d at 185 (finding that Section 1331 “is an appropriate source of jurisdiction” for a cause
of action based on the APA itself, for a “nonstatutory action, independent of the APA,” or for a
constitutional claim).
b. Standing
Section 702 of the APA provides standing to sue to one “‘suffering legal wrong
because of agency action.’” Abbott Labs. v. Gardner, 387 U.S. 136, 140 (1967) (quoting 5
12
U.S.C. § 702). Soon after the APA became law, the term “legal wrong” became the subject of
scrutiny and explication in the courts. In 1955, the United States Circuit Court for the District of
Columbia Circuit explained that “legal wrong” is a “term of art” which “means such wrong as
particular statutes and the courts have recognized as constituting grounds for judicial review.”
Kansas City Power & Light Co. v. McKay, 225 F.2d 924, 932 (D.C. Cir. 1955) (holding that
plaintiff power company did not have standing to sue because it would not suffer a “legal wrong”
as a consequence of a federally-supported power program likely to increase competition). The
Kansas City Power court cited the APA legislative history to note that the courts have a
“continuing role . . . in determining . . . who is entitled to judicial review.” Id. The D.C. Circuit
has characterized a “legal wrong” as “the invasion of a legally protected right.” Pennsylvania R.
Co. v. Dillon, 335 F.2d 292, 294 (D.C. Cir. 1964).
Although in some cases a “legally protected right” is one that has been bestowed
by statute, as in Pennsylvania Railroad, see id. at 295, other legally cognizable rights may also
warrant review. Thus, the D.C. Circuit has recognized a “so-called nonstatutory or common-law
type of review” under the APA, whereby “[i]f a party can show that he is ‘suffering legal wrong’
. . . he should have some means of judicial redress.” Scanwell Labs., Inc. v. Shaffer, 424 F.2d
859, 865 (D.C. Cir. 1970) (quoting S. Doc. No. 248, 79th Cong., 2d Sess. 37-38 38 (1946)).
Such a legal wrong includes an agency’s basing its “decisions on arbitrary or capricious abuses
of discretion,” so that “one who makes a prima facie showing alleging such action on the part of
an agency . . . has standing to sue” under the APA. Id. at 869; see also Whitzell v. Astrue, 589 F.
Supp. 2d 100, 109 (D. Mass. 2008) (“Although [the relevant statute] does not give this Court
jurisdiction to adjudicate the merits of the complaint, [plaintiff] is correct to seek review from
this Court because she has nowhere else to turn. . . . In the absence of clear and convincing
13
evidence that the congressional intent was to the contrary, courts ought not restrict access to such
review.” (internal quotation marks and citation omitted)).
2. Rule 12(b)(6)—Failure to State a Claim
Under Rule 12(b)(6) of the Federal Rules of Civil Procedure, 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 (2009) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007)). “If as a matter of law ‘it is clear that no relief could be granted under any
set of facts that could be proved consistent with the allegations,’” then the court must dismiss the
claim. Neitzke v. Williams, 490 U.S. 319, 327 (1989) (quoting Hishon v. King & Spalding, 467
U.S. 69, 73 (1984).
There are exceptions to the “basic presumption of judicial review to one
‘suffering legal wrong because of agency action.’” Abbott Labs., 387 U.S. at 140 (quoting 5
U.S.C. § 702). An APA challenge to an agency’s refusal to take enforcement action, as opposed
to an affirmative final action, is presumptively unreviewable. See Heckler v. Chaney, 470 U.S.
821, 832-33 (1985). A separate, substantive statute may explicitly preclude judicial review. The
APA itself also contains statutory exceptions under which judicial review is precluded. Section
701(a)(2) of the APA excepts from review matters that are “committed to agency discretion by
law.” 5 U.S.C. § 701(a)(2). While this exception is “very narrow,” Hi-Tech Furnace Systs., Inc.
v. FCC, 224 F.3d 781, 788 (D.C. Cir. 2000), it applies where “a court would have no meaningful
standard against which to judge the agency’s exercise of discretion.” Heckler, 470 U.S. at 830.
In the D.C. Circuit, such a defense is addressed under Rule 12(b)(6) (failure to state a claim) and
not Rule 12(b)(1) (subject-matter jurisdiction). Sierra Club v. Jackson, 648 F.3d 848, 854 (D.C.
Cir. 2011) (“A complaint seeking review of agency action ‘committed to agency discretion by
14
law’ has failed to state a claim under the APA, and therefore should be dismissed under Rule
12(b)(6), not under the jurisdictional provision of Rule 12(b)(1).” (citations omitted)).8
B. Preliminary Injunction
“A plaintiff seeking a preliminary injunction must establish that he is likely to
succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary
relief, that the balance of equities tips in his favor, and that an injunction is in the public
interest.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). Winter involved a
challenge to the Navy’s intention to conduct mid-frequency active sonar exercises, involving
ships, submarines and aircraft, in the waters off Southern California. Plaintiffs sought an
injunction until the Navy prepared an environmental impact statement due to the presence of
multiple species of marine mammals in the area. The lower courts that decided Winter before it
reached the Supreme Court had concluded that a preliminary injunction was warranted. Because
plaintiffs had demonstrated a strong likelihood of success on the merits of their claim, their
showing that there was a “possibility” of irreparable harm was sufficient to satisfy the second
prong. Id. at 20-21. The Supreme Court disagreed, emphasizing that “[o]ur frequently reiterated
standard requires plaintiffs seeking preliminary relief to demonstrate that irreparable injury is
likely in the absence of an injunction.” Id. at 22. The “possibility” of irreparable harm, cited by
the Ninth Circuit below, was too lenient. Id. Further, the Court emphasized the need to consider
the public interest and the defendant’s interest. Id. at 26-27.
8
Sierra Club resolved inconsistent precedent as to the applicable Rule. See Sierra Club, 648
F.3d at 854; see also Oryszak, 576 F.3d at 525-26; Trudeau, 456 F.3d 178, 183-84; contra Ass’n
of Irritated Residents v. EPA, 494 F.3d 1027, 1030 (D.C. Cir. 2007), abrogated by Sierra Club,
648 F.3d 848.
15
In the past, the D.C. Circuit has generally followed a “sliding scale” approach to
analyzing the four factors that determine whether to grant a preliminary injunction: “[i]f the
movant makes an unusually strong showing on one of the factors, then it does not necessarily
have to make as strong a showing on another factor.” Davis v. Pension Ben. Guar. Corp., 571
F.3d 1288, 1291-92 (D.C. Cir. 2009). However, in light of Winter, the D.C. Circuit has
suggested, without deciding, that “Winter could be read to create a more demanding burden,
although the opinion does not squarely discuss whether the four factors are to be balanced on a
sliding scale.” Id. at 1292. Further, the D.C. Circuit has opined that Winter could be read “to
suggest if not to hold” that a likelihood of success is an independent, free-standing requirement
for a preliminary injunction. Sherley v. Sebelius, 644 F.3d 388, 393 (D.C. Cir. 2011) (citing
Davis, 571 F.3d at 1296).
While the Fourth Circuit has read Winter to preclude the sliding-scale approach to
preliminary injunctions, its decision was vacated on other grounds and different Circuits have not
agreed. See Real Truth About Obama, Inc. v. FEC, 575 F.3d 342, 347 (4th Cir. 2009), vacated
on other grounds, 559 U.S. 1089 (2010); see also Alliance for the Wild Rockies v. Cottrell, 632
F.3d 1127, 1130-35 (9th Cir. 2011); Citigroup Global Mkts., Inc. v. VCG Special Opportunities
Master Fund Ltd., 598 F.3d 30, 35-38 (2d Cir. 2010); Hoosier Energy Rural Elec. Coop. v. John
Hancock Life Ins. Co., 582 F.3d 721, 725 (7th Cir. 2009)).
Whatever the viability of the “sliding scale” approach to the factors for a
preliminary injunction, it has long been held that the four factors are not equal. “Whether a
sliding-scale analysis still exists or not, courts in our Circuit have held that a failure to show a
likelihood of success on the merits alone is sufficient to defeat the motion.” Standing Rock Sioux
Tribe v. U.S. Army Corps of Eng’rs, 239 F. Supp. 3d 77, 83 (D.D.C. 2017) (denying plaintiffs’
16
motion for a preliminary injunction only for failure to show likelihood of success on the merits).
Without a probability of success, “‘the Plaintiff’s purported injuries, no matter how compelling,
do not justify preliminary injunctive relief.’” Apotex, Inc. v. Sebelius, 700 F. Supp. 2d 138, 140
(D.D.C. 2010) (quoting Am. Bankers Ass’n v. Nat’l Credit Union Admin., 38 F. Supp. 2d 114,
140 (D.D.C. 1999)).
Beyond likelihood of success, the likelihood of irreparable injury is also a critical
showing before a preliminary injunction will issue. See Winter, 555 U.S. at 22. This Court
concludes that Chaplaincy of Full Gospel Churches v. England is abrogated to the extent it
adopted a lesser injury threshold than Winter. See 454 F.3d 290, 297 (D.C. Cir. 2006) (holding
that a movant must show “at least some injury for a preliminary injunction to issue”). Winter
emphasizes that the basis for injunctive relief must be demonstrated irreparable harm. See
Sampson v. Murray, 415 U.S. 61, 88 (1974); Gomez v. Kelly, 237 F. Supp. 3d 13, (D.D.C. Feb.
27, 2017) (adopting the higher standard because the purpose of preliminary relief is “to preserve
the status quo pending resolution of the underlying litigation”) (internal quotation marks and
citations omitted).
III. ANALYSIS
A. Motion to Dismiss
1. Rule 12(b)(1)—Lack of Subject-Matter Jurisdiction
a. Federal-Question Jurisdiction
Because the APA does not confer jurisdiction, Defendants argue that the Court
should dismiss this case for lack of subject-matter jurisdiction. According to this argument,
Plaintiffs’ claims cannot proceed because they are not based upon a statutory predicate, separate
from the APA, and because DoDI 6055.05 and other internal guidance that Defendants have
17
allegedly violated do not confer legally enforceable duties. Plaintiffs counter that the Court has
subject-matter jurisdiction because their claims raise a federal question under 28 U.S.C. § 1331.
Plaintiffs argue that, even without a separate statutory predicate, the Court has subject-matter
jurisdiction where the Navy’s action is alleged to be arbitrary and capricious or taken without
observing procedures required by law.
The Court agrees with Plaintiffs that their allegations establish federal-question
jurisdiction under Section 1331, even absent allegations of a non-APA statutory violation. See
Heckler, 470 U.S. at 825 (before holding that there is a presumption against reviewability under
the APA of an agency’s refusal to act, noting as an initial matter that the district court had
subject-matter jurisdiction pursuant to Section 1331); Trudeau, 456 F.3d at 185 (finding that the
federal-question statute “is an appropriate source of jurisdiction” for a cause of action based in
the APA itself, for a “nonstatutory action, independent of the APA,” or for a constitutional
claim).
Defendants cite Steenholdt v. FAA, which suggests a different conclusion: “If no
‘judicially manageable standard’ exists by which to judge the agency’s action, meaningful
judicial review is impossible and the courts are without jurisdiction to review that action.” 314
F.3d 633, 638 (D.C. Cir. 2003). Steenholdt, however, has been abrogated, insofar as it holds this
question to be jurisdictional. See Sierra Club, 648 F.3d at 854. The Court need not belabor the
point: Plaintiffs’ allegations establish subject-matter jurisdiction pursuant to the federal-question
statute.
b. Standing
A plaintiff must also establish a “legal wrong” in order to bring a claim under the
APA for a non-statutory violation. 5 U.S.C. § 702 (“A person suffering legal wrong because of
18
agency action, or adversely affected or aggrieved by agency action within the meaning of a
relevant statute, is entitled to judicial review thereof.”). Defendants argue that Plaintiffs fail to
establish that “the interest [they] seek to vindicate falls within a statute’s zone of interest.”
Defs.’ Juris. Br. at 2. The “zone of interests” test, however, is relevant to claims by plaintiffs
who were “adversely affected or aggrieved by agency action within the meaning of a relevant
statute.” 5 U.S.C. § 702 (emphasis added); see, e.g., Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871(1990); Nat’l Fed’n of Fed. Emps. v. Cheney, 883 F.2d 1038 (D.C. Cir. 1989). Courts have
found a “legal wrong” sufficient to establish standing under the APA where “the courts have
recognized” other grounds for judicial review. Kansas City Power, 225 F.2d at 932; see also
Scanwell Labs., 424 F.2d at 865 (recognizing a “nonstatutory or common-law type of review”
under the APA for a party who has suffered a “legal wrong”).
The allegations of the Complaint make a prima facie showing of such a legal
wrong: Plaintiffs allege that DoD orders or effectively forces them to live and work in areas
contaminated with harmful substances, and they charge that doing so results from arbitrary and
capricious decision-making and also violates DoDI 6055.05 and other policies binding on Navy.
For purposes of establishing a right to review, these allegations are sufficient to establish
prudential standing.
c. Mootness
Defendants also argue that Counts Two and Three in Plaintiffs’ Complaint are
moot due to intervening events since the Complaint was filed on April 11, 2017. Count Two
alleges that DoD violated the APA by unreasonably delaying the completion of its risk
assessment and the implementation of controls to address environmental hazards; Count Three
seeks a writ of mandamus requiring completion of the investigation, risk assessment and
19
implementation. Defendants argue that these allegations are no longer “live” because DoD has
completed its assessment and appropriate implementations, as described in the Final Report and
expert declarations. Defendants add that when they filed the Final Report under seal on May 19,
2017, and subsequently published it online, the delay of which Plaintiffs complained was fully
remedied.
A defendant moving for dismissal pursuant to Federal Rule of Civil Procedure
12(b)(1) for lack of subject-matter jurisdiction may argue that the claim in question is moot,
which means that “‘the issues presented are no longer ‘live’ or the parties lack a legally
cognizable interest in the outcome.’” City of Erie v. Pap’s A.M., 529 U.S. 277, 287 (2000)
(quoting County of Los Angeles v. Davis, 440 U.S. 625, 631 (1979)). “[A]n actual controversy
must be extant at all stages of review, not merely at the time the complaint is filed.” Arizonans
for Official English v. Arizona, 520 U.S. 43, 68 n.22 (1997); see also 21st Century Telesis Joint
Venture v. FCC, 318 F.3d 192, 198 (D.C. Cir. 2003). The party asserting mootness carries a
“heavy burden,” Honeywell Int’l, Inc. v. NRC, 628 F.3d 568, 576 (D.C. Cir. 2010), and must
show that events have occurred which prevent the court from granting the relief sought. See
Burlington N. R. Co. v. Surface Transp. Bd., 75 F.3d 685, 688 (D.C. Cir. 1988). A court may
dismiss a claim as moot if intervening events “have completely and irrevocably eradicated the
effects of the alleged violation.” County of Los Angeles, 440 U.S. at 631.
Defendants argue that Counts Two and Three are moot because the relief sought
therein—completion of an investigation and risk assessment and implementation of appropriate
remediation and controls—is final. DoD highlights the facts that the Final Report was completed
on March 3, 2017, and submitted for internal security review; it was provided to the Court on
May 19, 2017 under seal, and subsequently released to the public. The Final Report details the
20
process that DoD and its experts undertook, over almost two years, to investigate the alleged
environmental hazards, including multiple rounds of sampling and analysis. See Final Report at
3-7 (detailing the investigations, reports, and remedial measures taken); see also Final Report
App’x A, Public Health Review Actions-to-Date (Feb. 2017) [Dkt. 14-1]. DoD emphasizes its
mitigation efforts, subsequent follow-up testing, and conclusions, as detailed in the Final Report;
steps it took to implement appropriate controls, see generally App’x F Status Report, and other
materials, such as expert declarations, that demonstrate completion of the implementation phase.
Plaintiffs argue that Counts Two and Three are not moot because the
investigation, risk management process, and other activities on which DoD relies do not satisfy
the processes set forth in DoDI 6055.05, and are thus incomplete and unreasonably delayed. See
Opp’n at 8-9. Specifically, Plaintiffs allege that DoD has not yet “completed” three final
“stages” required by DoDI 6055.05: “Step 3: developing controls and making risk decisions;
Step 4: implementing controls; and Step 5: supervising and evaluating the results.” Opp’n at 9.
In response, Defendants argue that these remaining stages are only broad categories of
requirements that are inherently discretionary. Defendants contend that they have already
conducted the analyses they believe to be sufficient, and that the Final Report establishes the
adequacy of the remediation that has been implemented. They also argue that no additional
“controls” need be developed or implemented because no further “unacceptable risks were
found.” Reply at 4. According to DoD, the results of its investigation and analysis have already
been documented in the Final Report, and DoD has supplied additional expert declarations in this
litigation to support its determinations that further mitigation is not necessary to protect those
who live and work at Camp Justice from an unacceptable risk of environmental harm. See Mot.
to Dismiss, Exs. 1-5 (expert declarations) [Dkts. 10-1 - 10-5].
21
Plaintiffs’ argument does not overcome the fact that the actions sought in their
Complaint have been undertaken and, to the extent demanded, completed. When a plaintiff has
received the relief sought but considers the outcome wrong, a charge of unreasonable delay is no
longer live and review lies in the APA’s protection against arbitrary and capricious action. See
Bldg & Constr. Trades Dep’t, AFL-CIO v. Solis, 600 F. Supp. 2d 25 (D.D.C. 2009). The instant
Complaint alleges unreasonable delay as to both the risk assessment and the implementation of
controls; it seeks a writ of mandamus to require these actions. Compl. ¶¶ 135, 139. However,
the Final Report constitutes the Navy’s final act as to the risk assessment and implementation of
what it considers appropriate measures to address potential hazards. Given this development,
Plaintiffs’ arguments now relate to the adequacy of these actions, not to delay.
Plaintiffs resist this conclusion by citing two D.C. Circuit cases on unreasonable
delay, both of which found that the claims at issue were not moot. See Kifafi v. Hilton Hotels
Ret. Plan, 701 F.3d 718 (D.C. Cir. 2012); True the Vote, Inc. v. Internal Revenue Serv., 831 F.3d
551 (D.C. Cir. 2016). Neither case supports Plaintiffs’ argument here because both involved the
voluntary cessation of the challenged conduct, not the fulfillment of a plaintiff’s demands for
relief. In a case of voluntary cessation, the defendant is still “free to return to its old ways” and
cannot be said to have “irrevocably eradicated the effects of the alleged violation.” True the
Vote, 831 F.3d at 561 (internal quotation marks and citations omitted). In contrast, the “alleged
violation” here was unreasonable delay in analyzing the risk and implementing controls. There
is no longer any danger that DoD will continue to delay its risk assessment and related
implementation, because these activities have been completed, whether or not to Plaintiffs’
satisfaction.
22
Plaintiffs further argue that Defendants’ actions are incomplete because they have
not implemented all recommendations from the Final Report, “such as the implementation of an
operations and management program for asbestos-containing materials.” Opp’n at 11. Citing
True the Vote, Plaintiffs argue that even if these claims are “nearly moot,” they are still subject to
review. Opp’n at 11 (citing True the Vote, 831 F.3d at 561). Defendants counter that all
necessary steps to mitigate the alleged health risks (such as changes to heating, ventilation, and
air conditioning) have been taken, and that any remaining recommendations are discretionary. In
light of the record evidence, DoD has resolved the allegations of delay advanced by Plaintiffs,
that is, delay in completing a risk assessment and delay in implementing “controls to address
environmental contamination and other unhealthy conditions.” Compl. ¶ 135. Plaintiffs’
ongoing allegations relate to the adequacy of DoD’s investigation and remediation measures, not
to unreasonable delay. The Motion to Dismiss will be granted as to Counts Two and Three and
those claims will be dismissed as moot.
2. Rule 12(b)(6)—Failure to State a Claim
Count One alleges that the decision that Camp Justice is safe and habitable, and
the requirement that Plaintiffs live and work in allegedly contaminated areas, are based on an
inadequate investigation and implementation of mitigating controls and are therefore arbitrary
and capricious and an abuse of the Navy’s discretion in violation of Section 706(2).
a. Actions “Committed to Agency Discretion by Law”
Defendants argue that the challenged actions are “committed to agency discretion
by law” and are therefore unreviewable by the Court, even under the APA. See 5 U.S.C.
§ 701(a)(2). Plaintiffs respond that Defendants failed to raise this defense in their Motion to
Dismiss and that the Court should not consider it now. Plaintiffs are correct that the question of
23
agency discretion is an affirmative defense that does not go to the Court’s jurisdiction, but they
do not cite any authority for the suggestion that Defendants’ failure to raise the issue in their
Motion to Dismiss precludes the Court from determining whether the claims are reviewable and
as to which Plaintiffs have had a full opportunity to object. Indeed, under Federal Rule of Civil
Procedure 12(h)(1), failure to state a claim upon which relief can be granted is not a defense that
can be waived if a party fails to include it in a responsive pleading or other papers filed with the
Court. See Fed. R. Civ. P. 12(h), (b)(2)-(5) (providing that a party waives the defenses of lack of
personal jurisdiction, improper venue, insufficient process, and insufficient service of process by
failing to make them by motion, but that failure to state a claim may be raised by a motion under
Rule 12(c)). Moreover, although the question is not jurisdictional, it is a “threshold” question:
the Court cannot review an action that is outside the Court’s authority to review. See Heckler,
470 U.S. at 829 (discussing the “‘threshold question’ of whether the agency’s action was at all
reviewable” (quoting Citizens to Pres. Overton Park v. Volpe, 401 U.S. 402, 410 (1971))).
Defendants characterize the administrative action at issue as the Navy’s refusal to
take action—a category of administrative action that is presumptively unreviewable. See
Heckler, 470 U.S. at 831. DoD further argues that its actions were “[o]perational military
decisions” that “fall very much within this ‘presumptively unreviewable’ category.” Defs.’ Juris.
Br. at 8. Without further elaboration, the Court cannot agree with this characterization of the
nature of the claims at issue. Plaintiffs challenge the adequacy of DoD’s investigation and
remediation efforts, not its decision to exercise enforcement discretion. Because Count Three
does not complain of a refusal to act, its allegations are not presumptively unreviewable.
As to the argument that the Navy engaged in “operational military decisions” that
are presumptively unreviewable, DoD provides no legal or factual analysis to establish that the
24
healthy maintenance of Camp Justice falls within an “operational military” category. Plaintiffs
are appointed counsel and DoD employees who are required, by virtue of their appointments, to
live and work at times on an operating base. Only Major Seeger is in the military forces.
Certainly, the Navy retains discretion to manage NSGB, but DoD does not connect its
operational mission to Camp Justice or to Plaintiffs’ allegations of serious environmental
hazards, which, at this point, the Court assumes are true. See Twombly, 550 U.S. at 572.
Defendants also argue that the challenged actions are “committed to agency
discretion” by law because there are no judicially manageable standards by which to judge them.
This argument is based on Heckler, which held that a claim is unreviewable if “no judicially
manageable standards are available for judging how and when an agency should exercise its
discretion.” Heckler, 470 U.S. at 830. In these circumstances, the argument amounts to stuff
and nonsense. The “arbitrary and capricious” standard of the APA is well established. Further,
judicially manageable standards are not limited to statutory terms but also “may be found in
formal and informal policy statements and regulations” because “[i]t is well settled that an
agency, even one that enjoys broad discretion, must adhere to voluntarily adopted, binding
policies that limit its discretion.” Padula v. Webster, 822 F.2d 97, 100 (D.C. Cir. 1987) (citing
Vitarelli v. Seaton, 359 U.S. 535, 539 (1959); Service v. Dulles, 345 U.S. 363, 372 (1957)).
In determining whether administrative policies or internal statements establish
judicially manageable standards, courts look to whether statements “[impose] rights or
obligations on the respective parties” and whether an agency intended to transform a
pronouncement into a binding norm. Id. (citing American Bus Ass’n v. U.S., 627 F.2d 525, 529
(D.C. Cir. 1980); Doe v. Hampton, 566 F.2d 265, 281-82 (D.C. Cir. 1977)); see also Steenholdt,
314 F.3d at 638 (“In determining whether agency statements create such a standard, the Court
25
inquires whether the statements create binding norms by imposing rights or obligations on the
respective parties.”). Such intent is “ascertained by an examination of the provision’s language,
its context, and any available extrinsic evidence.” Doe v. Hampton, 566 F.2d at 281. Plaintiffs
allege, and DoD denies, that Defendants failed to follow internal policies and procedures that
have the force and effect of binding norms. Specifically, Plaintiffs cite DoDI 6055.05, which
articulates, as a risk management principle, that Commanders “[a]ccept no unnecessary risks” in
the context of occupational and environmental health; DoDI 6055.05 also requires the Navy and
the Convening Authority to investigate the nature and extent of health hazards, develop controls
and make risk decisions, and, in Plaintiffs’ summary, “determine which risks are acceptable and
unacceptable by balancing operational benefits against the potential for adverse health effects
(i.e., severity and likelihood of occurrence).” Compl. ¶ 123. Plaintiffs emphasize that DoDI
6055.05 specifies the categories of actions that military commanders should take to assess risks,
implement controls, and monitor implementation.
Plaintiffs additionally rely on other directives, underlying documents, and
“applicable regulatory standards” that they argue set forth factors that DoD should have taken
into account in making its DoDI-mandated determination, including:
 DoD Directive (DoDD) 4715.1E, which Plaintiffs characterize
as requiring DoD to implement an Environment, Safety, and
Occupational Health management system, see Compl. ¶¶ 66,
123(a);
 DoDI 6055.01, which governs DoD’s safety and occupational
health program, see Compl. ¶ 66;
 EPA standards that Plaintiffs allege Defendants acknowledge
apply (for example, by using those standards in the Final
Report), see, e.g., Opp’n at 7-8 n.2;
 Instructions from the Chief of Naval Operations (OPNAVIST)
that govern safety and occupational health and require that,
26
among other things, identified hazards must be promptly abated,
see Compl. ¶¶67-69;
 Navy guidance, including the Navy’s Industrial Hygiene Field
Operations Manual, see id. ¶ 70-71, and the Navy Policy on the
Use of Background Chemical Levels, see id. ¶¶ 72, 85, 92.
These policies and procedures, Plaintiffs contend, establish DoD’s intent to bind its personnel to
certain steps to address environmental hazards that were not followed at NSGB.
Defendants argue that these directions “very clearly commit the protection of
DoD personnel” to the Navy’s discretion. Defs.’ Juris. Br. at 6. In support, DoD cites a handful
of DoDD and DoDI provisions, but these are insufficient, on a motion to dismiss, to demonstrate
that none of the Directives, Instructions, or other documents cited by Plaintiffs “create[s] binding
norms by imposing rights or obligations on the respective parties.” Steenholdt, 314 F.3d at 638.
Indeed, while the materials cited by Defendants allow for discretion in aspects of system
implementation and in the authority of commanders to make health-related risk/benefit
determinations, none suggests that the Navy has full discretion to ignore them. On its face,
DoDI 6055.05 appears to require that the Navy and Convening Authority take certain steps to
assess risks, weigh them, establish controls, and consult other materials to make risk assessments
and mitigate harms as necessary. See Doe v. Hampton, 566 F.2d at 281 (providing that the
language of a document can provide evidence of intent that the document binds agency action).
Certainly, there are discretionary aspects to these requirements, and it may be that DoD’s various
investigations, reports, and mitigation activities satisfied the requirements that do apply—but
those questions cannot be resolved on a motion to dismiss, where the Court must accept all of
Plaintiffs’ allegations as true. See Twombly, 550 U.S. at 572.
27
b. Final Agency Action
Finally, Defendants argue that Plaintiffs have failed to challenge a “final agency
action” by which APA review might be available. Count One challenges DoD’s assignment of
Plaintiffs to sleep in Cuzcos at Camp Justice during work trips, as well as the determination that
the Camp Justice facilities are safe and habitable. Compl. ¶ 131. Defendants argue that Count
One should be dismissed for failure to state a claim under Rule 12(b)(6), because Plaintiffs’
allegations do not identify a final action by Defendants and therefore fail to state an APA claim.
Final agency action is clearly required before judicial review. See 5 U.S.C. § 704(“Agency action made reviewable by statute and final agency action for which there is no other
adequate remedy in a court are subject to judicial review.”). “The District Court’s authority to
review the conduct of an administrative agency is limited to cases challenging ‘final agency
action.’” Reliable Automatic Sprinkler Co., Inc. v. CPSC, 324 F.3d 726, 731 (D.C. Cir. 2003).
The APA defines an “agency action” as “the whole or a part of an agency rule, order, license,
sanction, relief, or the equivalent or denial thereof.” 5 U.S.C. § 551(13). “This list is
expansive,” and is “‘meant to cover comprehensively every manner in which an agency may
exercise its power.’” Fund for Animals, Inc. v. U.S. Bureau of Land Mgmt., 460 F.3d 13, 19
(D.C. Cir. 2006) (quoting Whitman v. Am. Trucking Ass’ns, Inc., 531 U.S. 457, 478 (2001)).
To be deemed final, an agency action “must ‘mark the consummation of the
agency’s decisionmaking process,’ i.e., it is not ‘merely tentative or interlocutory.’ . . . Second,
‘the action must be one by which rights or obligations have been determined, or from which
legal consequences will flow.’” Safari Club Int’l v. Jewell, 842 F.3d 1280, 1289 (D.C. Cir.
2016) (quoting Bennett v. Spear, 520 U.S. 154, 177-78 (1997)). This is a “pragmatic” and
“flexible” inquiry. Safari Club, 842 F.3d at 1289 (quoting Nat’l Ass’n of Home Builders v. U.S.
28
Army Corps of Eng’rs, 417 F.3d 1272, 1279 (D.C. Cir. 2005)). The possibility that a decision
may later be revised based on new information does not render “an otherwise definitive decision
nonfinal.” Safari Club, 842 F.3d at 1289 (quoting U.S. Army Corps of Eng’rs v. Hawkes Co.,
136 S. Ct. 1807, 1814 (2016)).
The first question raised by Defendants’ argument is what action or actions
Plaintiffs actually challenge in their lawsuit. Count One of the Complaint describes the actions
at issue as “[t]he Navy’s decision that Camp Justice is safe and habitable, and Defendants’
decision that Plaintiffs and other personnel must live and work in contaminated areas at Camp
Justice.” Compl. ¶ 131. In brief, Plaintiffs characterize their complaint as a challenge to DoD’s
“flawed and incomplete risk management process and the resulting orders to live and work at
Camp Justice.” Opp’n at 8. Plaintiffs also reference “DoD’s repeated orders assigning Plaintiffs
to live and work at Camp Justice,” and suggest that these orders provide evidence that DoD
“determined that Camp Justice was safe and habitable and that personnel should continue to live
and work there.” Id. at 13. Finally, Plaintiffs describe the “agency actions” in question as
“DoD’s repeated, health-threatening orders that the Plaintiffs live and work in contaminated
areas of Camp Justice, DoD’s failure to protect the Plaintiffs from environmental hazards, and
DoD’s determination that Camp Justice is safe and habitable.” Opp’n at 14. For purposes of
determining whether Plaintiffs have challenged “final agency actions,” the Court interprets these
passages collectively as a challenge to two categories of agency action: (1) DoD’s assignment of
Plaintiffs to live and work in contaminated areas at Camp Justice during work trips, and (2)
DoD’s “determination” that Camp Justice safe and habitable.
29
i. Did DoD’s Assignment of Plaintiffs to Allegedly Contaminated
Accommodations Constitute Final Agency Action?
The Complaint alleges that “[e]ach time military commissions hearings are
scheduled at Camp Justice, the legal teams and support personnel request travel arrangements
from the Convening Authority and receive orders from the Convening Authority assigning them
to specific housing.” Compl. ¶ 26. At the hearing on their motion for a preliminary injunction,
Plaintiffs acknowledged that only Major Seeger, as an Army officer, is required without
exception to stay in the allegedly contaminated Camp Justice housing; the non-military Plaintiffs
may stay in preferable hard housing such as the townhouses or nearby hotel rooms, subject to
availability which has usually been arranged. See PI Tr. at 44-46.9
Plaintiffs complain further that their support staff, such as legal assistants who
accompany them to NSGB for detainee hearings, are inconvenienced and endangered by the
housing assignments, which impedes Plaintiffs’ work by limiting or interfering with their ability
9
DoD counsel proffered, without contradiction, that Plaintiff Michael Schwartz stayed on-base
for a total of 29 days in 2016, always staying at the Navy Lodge or NSGB housing; from
January-July 2017 he stayed at the Navy Lodge for seven days and in Cuzcos for four days. PI
Tr. at 44. Plaintiffs Cheryl Bormann and Edwin Perry have traveled to NSGB numerous times
since 2014 and 2015, respectively, and both have always stayed in “hard housing”: Ms.
Bormann stayed at either the Navy Lodge or NSGB “hard housing” during her four days on-base
in 2014, 46 days in 2015, 40 days in 2016, and 22 days in January-July of 2017, and as of July
2017 she had received “hard housing” assignments for her remaining work trips in 2017; Mr.
Perry stayed in the Navy Lodge or NSGB “hard housing” for a total of 21 days in 2015, 56 days
in 2016, and 21 days in January-July 2017, and also had hard housing reservations for the
remainder of his 2017 trips as of July 2017. Id. at 44. As an Army officer, Major Seeger stayed
in Cuzcos for a total of 18 days in 2015, 63 days in 2016, and 23 days in January-July 2017, with
no option of requesting hard housing even if available. Id. at 46. Defendants do not challenge
Mr. Schwartz’s, Ms. Bormann’s, or Mr. Perry’s standing on the grounds that they have stayed in
“hard housing” for all or the vast majority of their time on-base. Because Plaintiffs’ allegations
are based on the potential harm of both living and working in allegedly contaminated housing,
and because the operative housing policy does not guarantee “hard housing” to Plaintiffs and
apparently prioritizes their right to preferable housing below the needs of other visitors to NSGB,
the Court does not find any impediments to these Plaintiffs’ standing on such grounds.
30
to bring support staff. See Compl. ¶ 29. Plaintiffs also complain that the work they are assigned
requires them to spend the majority of their working hours on base in allegedly contaminated
areas because the SCIF and designated defense workspaces convenient to the SCIF have been
built in hazardous containerized housing. See Compl. ¶ 30.
Defendants respond that Plaintiffs do not cite “any specific regulation, policy, or
decision” that requires them to live and work in the allegedly contaminated areas, so that “there
is no final agency action, nor is there an administrative record on which such an action could
have been based.” Mot. to Dismiss at 17. In support, Defendants cite Fraternal Order of Police
v. Gates, which held that a challenge to the Navy’s exposure of trainees to pepper spray failed to
state a claim, because those plaintiffs had been “less than clear as to which agency action is at
issue” and had failed to “connect the [challenged] training to the language of the DoD and Navy
documents” cited in their complaint. 602 F. Supp. 2d 104, 107-08 (D.D.C. 2009).
Defendants’ reliance on Fraternal Order is unpersuasive. The Fraternal Order
court found that the right to relief was “speculative,” Twombly, 550 U.S. at 555, because the
plaintiffs had not identified the precise agency actions challenged, leaving the Court to “guess.”
Fraternal Order, 602 F. Supp. 2d at 108. Here, however, there is no need to guess which actions
Plaintiffs challenge or what law and policies upon which they rely. Defendants are mistaken
when they argue that Plaintiffs fail to point to any decision that requires Plaintiffs to stay at
Camp Justice. Plaintiffs’ pleadings, which the Court accepts as accurate in this procedural
posture, clearly allege that there is a procedure in place whereby attorneys and other visiting
personnel submit housing requests for upcoming work trips, and that the Convening Authority
orders them to specific housing. Further, the nature of their work as attorneys requires them to
31
work in the SCIF where relevant documents are available and classified briefs can be prepared
but which is allegedly contaminated.
It is well established that “a completed universe” of orders can establish a final
agency action subject to APA review: less central to the analysis than the format of the orders is
whether “the scope of the controversy has been reduced to manageable proportions, and its
factual components fleshed out, by concrete action that harms or threatens to harm the
complainant.” Lujan, 497 U.S. at 873. Particularly when viewed within the “pragmatic” and
“flexible” framework of the inquiry into “final agency action” and the acceptance given to a
plaintiff’s fact allegations, the Complaint adequately alleges final agency action. Nat’l Ass’n of
Home Builders, 417 F.3d at 1279. The orders are a “consummation of the agency’s
decisionmaking process,” imposing on Plaintiffs the requirement that they work, and possibly
stay, in the facilities of which they complain. Safari Club, 842 F.3d at 1289. That decision in
turn places Plaintiffs’ health at risk, according to their pleadings. The housing orders and
necessary work areas are clearly connected to the alleged policy violations, and the Court
concludes that Plaintiffs have alleged final agency action sufficient to state a claim.
ii. Did DoD’s Determination that Camp Justice Is Safe and
Habitable Constitute Final Agency Action?
Plaintiffs allege that DoD’s “determination that Camp Justice is sufficiently safe
and habitable to live and work there” is final agency action, because “there is no indication that
Defendants will alter their position regarding the environmental contamination at Camp Justice.”
Opp’n at 15; see also Compl. ¶ 8 (“Defendants’ decision to require Plaintiffs and other personnel
to live and work [at Camp Justice] should be set aside as arbitrary and capricious.”). Plaintiffs
allege that DoD’s repeated orders assigning Plaintiffs to live and work at Camp Justice are
evidence of a final decision. Opp’n at 12. Plaintiffs also allege that Defendants “fail[ed] to
32
properly complete the risk management process required by DoD Instruction 6055.05 . . . and to
determine whether the operational benefits of requiring personnel to live and work there
outweigh the risk to those individuals’ health.” Id. DoD’s limited response argues that DoDI
6055.05 and other “[i]nternal guidelines” are “insufficient to connect agency action to specific
regulatory authorization or to raise a right to relief above the speculative level.” Reply at 7
(citing Fraternal Order, 602 F. Supp. 2d at 107-08).10
Plaintiffs argue that the decision that Camp Justice is safe and habitable is
“concrete” and “reviewable” because the orders and assignments to live and work in allegedly
contaminated housing and work space “operate as a de facto risk management decision” that
violates DoDI 6055.05. Opp’n at 13. As the Court found above, Navy undertook a
“decisionmaking process” which “consummate[ed]” in the issuance of the Final Report. Bennett,
520 U.S. at 178.
What is less clear is whether any of the allegedly flawed investigation, risk
assessment, mitigation, and Final Report constitute final agency action. Such a study does not fit
the statutory definition of agency action, that is, “the whole or a part of an agency rule, order,
license, sanction, relief, or the equivalent or denial thereof.” 5 U.S.C. § 551(13). Even if the
Final Report were “definitive,” it is the resulting order, not the preceding study that has a “‘direct
and immediate . . . effect on the day to day business’ of the party challenging the agency action.”
Reliable Automatic Sprinkler, 324 F.3d at 731 (quoting FTC v. Standard Oil Co. of Cal., 449
10
Defendants also cite Schweiker v. Hansen, 450 U.S. 785 (1981), for the proposition that
internal guidelines “do not create an actionable duty for an agency.” Reply at 7. While an
accurate point, reference to Schweiker is curious because that case did not analyze any APA
questions, much less whether agency action is final, and there is no shortage of Supreme Court
and D.C. Circuit cases more squarely considering the question. Plaintiffs allege that the Navy at
NSGB was required to abide by the various directives and instructions they cite, and Defendants
do not overcome those allegations.
33
U.S. 232, 239 (1980)). Applied here, it is Navy’s orders, whether explicit or functional, that are
the means through which it “may exercise its power.” Whitman, 531 U.S. at 478. As the D.C.
Circuit noted in Fund for Animals, “[m]uch of what an agency does is in anticipation of agency
action. Agencies prepare proposals, conduct studies, . . . and engage in a wide variety of
activities that comprise the common business of managing government programs.” 460 F.3d at
19-20. In the context of potential harms to Plaintiffs, the determination that the areas in question
are safe and habitable is such an anticipatory step, while the housing orders and necessary
location of work assignments are the final actions on which Plaintiffs’ claim is based.
B. Preliminary Injunction
First, the Motion for a Preliminary Injunction will be denied as moot as to Counts
Two and Three, because those claims do not survive DoD’s Motion to Dismiss.
Second, as Winter recently emphasized, a preliminary injunction is “an
extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled
to such relief.” Winter, 555 U.S. at 22. Since Winter was decided, the D.C. Circuit has twice
declined to abandon the sliding-scale approach. See Sherley, 644 F.3d at 393 (“We need not
wade into this circuit split today.”); Davis v. Pension Ben. Guar. Corp., 571 F.3d 1288, 1292
(D.C. Cir. 2009) (“We need not decide whether a stricter standard applies.”). Recognizing the
Circuit’s silence, this Court nonetheless concludes that Winter makes clear that a plaintiff must
make, at the least, a strong showing on likelihood of success on the merits and irreparable harm,
or he cannot obtain preliminary injunctive relief.
1. Likelihood of Success on the Merits
Plaintiffs argue that they have demonstrated a likelihood of success on the merits
because “[t]here is simply no reasonable or rational justification for requiring Plaintiffs and
34
others to live and work in dangerous, contaminated areas, particularly where, as here,
uncontaminated alternatives exist,” which renders the Navy’s orders arbitrary and capricious.
Mot. PI at 11 (citing 5 U.S.C. § 706(2)(A)). Plaintiffs cite DoDD 4715.1E, which charges DoD
components with ensuring compliance with applicable “laws, regulations, and DoD policies,”
and which Plaintiffs take to include environmental safety and occupational health laws and
policies, such as EPA standards for environmental health and safety. Mot. PI at 12. Plaintiffs
contend that the Navy violated these policies by failing to address “data gaps”; conducting
insufficient “additional environmental sampling”; failing to address moisture and microbial
growth; and inadequately mitigating risks posed by formaldehyde and benzo(a)pyrene identified
in sampling. More generally, Plaintiffs allege that the investigation itself was inadequate. Their
summary allegation is that the Navy’s orders that Plaintiffs “continue to live and work in
contaminated areas at Camp Justice . . . materially deviate from the Navy’s own regulations,
policies, and guidance (as well as recommendations from its own consultants).” Id. at 12.
DoD’s response emphasizes the process and reasoning behind its determination
that the facilities at Camp Justice are habitable without undue risk:
NMCPHC’s Final PHR Report concluded that there is no evidence
that the old runway at Camp Justice was contaminated from prior
use, no evidence that Camp Justice personnel are exposed to
carcinogens or toxic substances above the acceptable risk ranges
established by the EPA, OSHA, and other regulatory agencies, and
no evidence that any verifiable cancer cases are linked to
environmental or occupational exposure at Camp Justice. [The
Report’s] findings and recommendations are well-founded, and it
would not be the Court’s place to second-guess the NMCPHC’s
expert analysis.
Mot. to Dismiss at 20 (citing Lee Mem’l Health Sys. v. Burwell, 206 F. Supp. 3d 307, 321
(D.D.C. 2016)).
35
Plaintiffs raise particular concern regarding the February 2016 Navy Preliminary
Assessment, which the Navy characterizes in the Final Report as a “preliminary public health
screening risk assessment.” Final Report at 6. Plaintiffs charge that Navy had concluded in
February 2016 that “formaldehyde and benzo(a)pyrene found in the samples exceeded the
screening levels [NMCPHC] had established for a 9-month active duty military worker.” Mot.
PI at 13; see also Final Report at 6-8. The Court recognizes that formaldehyde is of particular
concern to Plaintiffs. Indeed, based on the prominent placement of discussions of formaldehyde
levels and remediation, this appears to be an issue of great concern in the Final Report as well.11
However, the Final Report provides significant detail, beyond the February 2016 Navy
Preliminary Assessment, that undercuts Plaintiffs’ likelihood of success.
The Final Report states that “[t]he results of the preliminary public health
screening risk assessment [i.e., the February 2016 Navy Preliminary Assessment] indicated that
mercury and formaldehyde concentrations in indoor air, and arsenic and benzo(a)pyrene
concentrations in soil were of potential concern and warranted further evaluation at specific
locations in Camp Justice,” although the mercury and formaldehyde levels measured in indoor
air were within the acceptable OSHA range.12 Final Report at 6. As Defendants’ counsel
explained at oral argument, the concentrations at that time warranted further evaluation because
they exceeded EPA screening standards set forth in the Comprehensive Environmental
Response, Compensation, and Liability Act (CERCLA, commonly known as the Superfund), 42
11
Because formaldehyde is the most serious potential hazard of which Plaintiffs complain, the
Court’s analysis on the Motion for a Preliminary Injunction focuses on formaldehyde exposure.
Plaintiffs have raised other issues of concern but none satisfies the standards for a preliminary
injunction.
12
OSHA sets Permissible Exposure Limits, or PELs, which are enforceable regulatory standards
for determining allowable exposures in U.S. workplaces. See Gillooly Decl. at 12.
36
U.S.C. § 9601 et seq. See PI Tr. at 38-39. Contrary to Plaintiffs’ contention that DoD has
“conceded” that “EPA CERCLA risk guidance must be used,” PI Tr. at 26, Defendants argue
that CERCLA guidelines do not impose requirements on an overseas base such as NSGB, but
were only “borrow[ed]” for use as a benchmark during the investigation prior to the Final
Report. Id. at 38-39.
The Final Report concluded that “[c]umulative cancer risks were within the
[EPA] acceptable risk range of 1E-06 to 1E04 (i.e., 1 in 1,000,000 to 1 in 10,000)” for “Adult
Resident/Workers Inside Camp Justice.” Final Report at 41. The Final Report stated that, after
“engineering controls” including HVAC modifications, formaldehyde levels in “almost all
modular buildings” decreased by an average of 63 percent. Id. at 8. It also reported that the
“concentrations of formaldehyde detected in indoor air at Camp Justice were within the range of
concentrations considered ‘Low’ to ‘Mid’ by the CDC for typical concentrations observed in
manufactured homes” in the United States. Id. at 42. The Final Report recommended new
procedures to document modifications and monitor the functionality of HVAC systems going
forward, and suggested that the Navy “consider sampling formaldehyde annually during the
summer to verify and demonstrate that engineering controls are effective at keeping
formaldehyde levels at their current reduced levels.” Id. at 13. Although Plaintiffs’ expert, Dr.
Killen, expressed his concern regarding identified toxins and possible exposure pathways, see
Killen Report at 1, Navy experts reviewed the same data and concluded that the detected
formaldehyde levels, and historical use and effects of the area, did not indicate an unacceptable
risk. See, e.g., Gillooly Decl. at 7-11 (discussing the iterative process of repeated formaldehyde
sampling and mitigation efforts).
37
Plaintiffs further challenge DoD’s conclusions because its samples came from
only 16 of the 100 Cuzco sleeping spaces, and because they did not test and re-test all of them.
See, e.g., Killen Report at 10 (“[I]n a serious deviation from appropriate testing protocol and
methodology, not all CUZCOSs appear to have been sampled, even though formaldehyde was
detected in all locations that were sampled.”). Dr. Killen does not explain in sufficient detail to
counter the Final Report why it is methodologically unsound to sample some but not all of a
collection of nearly identical structures situated in close proximity. Notably, the subsequent
HVAC modifications, shown in later sampling to have been effective in reducing formaldehyde
exposure, was implemented in all of the Cuzcos used for sleeping.
Plaintiffs’ motion does not sufficiently demonstrate that DoD’s conclusion was an
unreasonable risk assessment or that DoD wholly disregarded the broad guidelines set forth in
DoDI 6055.05 and the other relevant policies. The investigation into potential hazards was
apparently considered with competing needs. DoD considered factors such as housing demand,
convenience to the ELC, and other reasons to assign legal team members to live and work in the
contested housing.
Plaintiffs’ motion does not show a likelihood of success on the merits. DoD
appears to have examined the relevant data and articulated “‘a rational connection between the
facts found and the choice made.’” Americans for Safe Access v. DEA, 706 F.3d 438, 449 (D.C.
Cir. 2013) (quoting MD Pharm. Inc. v. DEA, 133 F.3d 8, 16 (D.C. Cir. 1998)). The Court
concludes that Plaintiffs have not shown that they are likely to succeed on the merits, such that
the extraordinary remedy of a preliminary injunction is warranted.
38
2. Irreparable Injury
The Court finds that Plaintiffs also have failed to demonstrate irreparable injury.
Such harm must be “certain, great, actual, and imminent.” Mylan Labs. Ltd. v. FDA, 910 F.
Supp. 2d 299, 313 (D.D.C. 2012) (citing Wis. Gas Co. v. FERC, 758 F.2d 669, 674 (D.C. Cir.
1985)). While the alleged harm—risk of cancer—is no doubt “great,” the record does not show
that it is currently “certain,” “actual,” or “imminent.” DoD has made important upgrades,
including HVAC modifications in modular buildings and additional actions in the Cuzco living
quarters. See App’x F Status Report at 21-22. The fact that these upgrades have been made, and
have been shown to mitigate potential harms, lessens the likelihood of irreparable harm.
3. Balance of Equities and Public Interest
Plaintiffs contend that the equities and the public interest favor granting their
requested injunction. These two factors merge when relief is sought against the government.
United States Ass’n of Reptile Keepers, Inc. v. Jewell, 103 F. Supp. 3d 133, 163 (D.D.C. 2015)
(citing Nken v. Holder, 556 U.S. 418, 435 (2009)). Plaintiffs cite the “significant risk due to the
exposures summarized herein” and the “readily available” alternative facilities at NSGB. Mot.
PI at 20. They also cite the public interest in the proper functioning of the Military
Commissions. Id. at 21. Through declarations from persons with relevant experience and
knowledge, the Navy responds that the Military Commissions have specific housing and
workspace requirements, due to the specialized security requirements for its cases, and that there
are no other facilities at NSGB that would meet those requirements. See Mot. to Dismiss, Exs.
2-4 (declarations of Wendy A. Kelly; Capt. David Culpepper, USN; and Sandra Greenwell). The
Navy argues that if it were required to house all lawyers for detainees in hard housing and
39
provide new work facilities, the operations of the base would be affected for its personnel and its
mission.
“In each case, courts ‘must balance the competing claims of injury and must
consider the effect on each party of the granting or withholding of the requested relief.’” Winter,
555 U.S. at 24 (quoting Amoco Prod. Co. v. Vill. of Gambell, Alaska, 480 U.S. 531, 542 (1987)).
The parties present their arguments in abbreviated form and without sufficient detail for the
Court to perform the balancing of interests as required before an injunction can be issued.
Plaintiffs have therefore failed to demonstrate that the current balance of equities and the public
interest favor issuance of an injunction.
CONCLUSION
For the reasons discussed above, Plaintiffs’ motion for a preliminary injunction
will be denied. Defendants’ motion to dismiss will be granted as to Counts Two and Three and
denied as to Count One. A memorializing Order accompanies this Memorandum Opinion.
Date: March 30, 2018
/s/
ROSEMARY M. COLLYER
United States District Judge
40