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October 1, 1989

UNITED STATES OF AMERICA, et al., Defendants

Louis F. Oberdorfer, United States District Judge.

The opinion of the court was delivered by: OBERDORFER


 This matter is before the Court on the motion of Rockwell International Corporation for a preliminary injunction. Because Rockwell is unlikely to prevail on the merits of its underlying claims, an accompanying Order will deny the motion.

 Pursuant to a contract with the United States Department of Energy, entered January 8, 1975 and periodically renewed, most recently on January 1, 1989, Rockwell manages, operates, and maintains the government-owned facility known as the Rocky Flats Plant near Golden, Colorado, where nuclear weapons' components are produced. Affidavit of George B. Merrick, Sept. 20, 1989 ("Merrick Aff.") at paras. 2, 3. According to Rockwell, performance of the contract requires it to treat and dispose of certain types of waste materials in ways that the Environmental Protection Agency and the Department of Justice may determine, violate various United States laws and regulations. Memorandum of Points and Authorities in Support of Plaintiff Rockwell International Corporation's Application for a Preliminary Injunction ("Rockwell Memorandum") at 2-3. In particular, Rockwell targets three waste treatment and disposal procedures that it claims would place it in jeopardy of criminal prosecution if it were to continue operation of the plant: (1) the disposal of waste containing radioactive materials; (2) the treatment of residue in a plutonium recovery incinerator; and (3) the use of evaporator water, generated from hazardous waste elsewhere in the plant, in the plant's steam plant and cooling tower.

 In June 1989, agents of the Federal Bureau of Investigation filed an affidavit alleging suspected criminal conduct by Rockwell in the disposal of waste materials from the Rocky Flats Plant. Merrick Aff. at para. 15; Rockwell Ex. C. On the basis of that affidavit, a United States Magistrate in Colorado issued a warrant pursuant to which agents searched the Rockwell facility. Id. Thereafter, the Department of Justice advised Rockwell that it and several of its employees are the target of a criminal investigation. Rockwell Memorandum at 10-11. The investigation is now at the Grand Jury stage, but no indictment has yet been returned. Id. In addition to the federal criminal proceedings, a civil administrative complaint has been issued by the EPA that does not propose any civil penalties at this time. Memorandum of Rockwell International Corporation in Opposition to The United States' Suggestion of Mootness or, in the Alternative, Motion for an Extension of Time to Respond to Rockwell's Motion for a Preliminary Injunction, at Exh. 1. Finally, Colorado authorities have notified Rockwell that they consider its storage and management of certain residues to be unlawful. Merrick Aff. at para. 31.

 Rockwell alleges that, but for the threat of criminal prosecution, it stands ready to continue performing the 1975/1989 contract. Rockwell Memorandum at 4. Confronted with the prospect of criminal prosecution, however, it would abandon the contract, but for the fact that such an action might expose it to civil liabilities, including possible debarment from future government contract opportunities. Merrick Aff. at para. 5. Meanwhile, Energy and Rockwell have agreed that it would be in the best interest of both parties to release Rockwell from its contract as soon as a new contractor can be installed, estimated to be about January 1, 1990. Defendants' Memorandum in Response to Plaintiff's Application for Preliminary Injunction, Sept. 29, 1989 ("Defendants' Response") at 4. Rockwell seeks a preliminary injunction enjoining the government from demanding that Rockwell perform on the contract to the extent that performance might subject it to liability in any of the three areas targeted by Rockwell, and/or enjoining the government from prosecuting or imposing civil or criminal liability for any action hereafter taken with respect to the three areas targeted by Rockwell while it is being compelled to perform the contract.

 Rockwell does appear to be exposed to a dilemma. There was a time when a federal court might serve as a "refuge" for citizens, corporate as well as individual, so exposed. See, e.g., Chambers v. Florida, 309 U.S. 227, 240-41, 84 L. Ed. 716, 60 S. Ct. 472 (1940). But the concerns related by Rockwell here are presently beyond the power of a federal court to address. Our Court of Appeals has recently noted that it had found no case in which a federal court had enjoined a federal prosecutor's investigation or presentment of an indictment. Deaver v. Seymour, 261 U.S. App. D.C. 334, 822 F.2d 66, 69 (D.C.Cir. 1987) (see also id. at 72, D.H. Ginsburg, J., concurring). The strictures against federal court interference with state criminal investigations and prosecutions are well-established. See e.g., Younger v. Harris, 401 U.S. 37, 49, 27 L. Ed. 2d 669, 91 S. Ct. 746 (1971); Bokulich v. Jury Comm'n of Greene County, 394 U.S. 97, 98, 22 L. Ed. 2d 109, 89 S. Ct. 767 (1969); Spielman Motor Sales Co. v. Dodge, 295 U.S. 89, 79 L. Ed. 1322, 55 S. Ct. 678 (1935). In this case, as in Deaver, the defendant or potential defendant would have an opportunity, after an indictment is returned, to move to dismiss it and to defend against it at trial. Any defense based on the theory that the contract, not Rockwell's own free will, caused the allegedly criminal conduct, can only be pursued in court when, and if, an indictment is returned. See Deaver, 822 F.2d at 71 ("Prospective defendants cannot, by bringing ancillary equitable proceedings, circumvent federal criminal procedure.")

 Nor does this Court have authority at this time to suspend Rockwell's contract duties. Rockwell invokes the Administrative Procedures Act, 5 U.S.C. § 702 (1982), and the Due Process Clause of the Fifth Amendment to the United States Constitution as the sources of judicial authority to intervene and suspend, or authorize suspension of, performance under the contract. However, neither of these provides authority for the judicial action sought by plaintiff in this case.

 With respect to the claim that relies on APA Rockwell has failed to establish the existence of any final agency action that would entitle it to review. Plaintiff relies heavily on Abbott Laboratories v. Gardner, 387 U.S. 136, 87 S. Ct. 1507, 18 L. Ed. 2d 681 (1967). There, a regulation adopted after notice and comment that required all pharmaceutical manufacturers to "designate the established name of the particular drug every time its trade name is used anywhere in such material" was deemed to be a final agency action that was the appropriate subject of a pre-enforcement declaratory judgment. Id. at 139. The situation at hand, however, bears far more resemblance to Ewing v. Mytinger & Casselberry, Inc., 339 U.S. 594, 94 L. Ed. 1088, 70 S. Ct. 870 (1950), which the Abbott court carefully distinguished. In Ewing, the court denied an injunction barring further prosecution of a Food and Drug Administration finding of probable cause to believe that plaintiff had misbranded a dangerous product. The Abbott court approved the Ewing decision on the ground that such an "unheard form of relief . . ., if allowed, would have permitted interference in the early stages of an administrative determination. . . ." Abbott, 387 U.S. at 148. As it is likely to be decided that the grand jury proceeding and related administrative deliberations with respect to Rockwell, unlike the final order in Abbott, are still in flux, they, too, must be deemed inappropriate subjects for judicial intervention at this time in this Court. See also FTC v. Standard Oil Co., 449 U.S. 232, 66 L. Ed. 2d 416, 101 S. Ct. 488 (1980).

 In addition, Rockwell has failed to initiate, much less exhaust the mechanism described in the disputes clause of the contract, Rockwell Exh. A at para. 27, and the Contract Disputes Act, 41 U.S.C. §§ 601-613. Both of these provisions afford a forum for the resolution of disputes, such as Rockwell's claim that the threat of criminal prosecution renders legally impossible and unconscionable the continued operation of the plant pursuant to the contract. Action taken in a disputes review process could be reviewed in the Claims Court, now endowed with equitable powers. 41 U.S.C. § 609; 28 U.S.C. §§ 1346, 1491.

 Plaintiff relies heavily upon the decision of Judge Oliver Gasch in Paradyne Corp. v. Department of Justice, 647 F. Supp. 1228 (D.D.C. 1986). Because Paradyne has been dismissed as moot and is difficult to reconcile with Deaver, it cannot serve as binding precedent. Even if it could, however, it does not now appear that Rockwell will be able to show that the government demands performance that would subject Rockwell to the same risk of prosecution faced by the plaintiff in Paradyne. Energy's recent announcement that it intends to replace Rockwell at Rocky Flats by the end of 1989 evidences the probability that the government will relieve Rockwell from its current contract obligations soon. See Declaration of Berton J. Roth, Sept. 29, 1989 (attached as Exh. 1 to Defendants' Response). Rockwell has not shown that since this announcement it has endeavored administratively to seek relief from its obligations to operate the plant and instead simply to maintain the security of the place pending the installation of its successor contractor. Such action could remove Rockwell from its contract obligations without judicial intervention.

 More specifically, Rockwell fails to demonstrate that only an injunction could relieve it from the burden of either criminal or civil liability in any of the three areas that it states that it could be subjected to prosecution. With respect to the threat of prosecution for its disposal of low level radioactive waste, affidavits submitted by plaintiff demonstrate that Energy's acting area manager had earlier stated that if disputes with EPA were not resolved, he might suspend operations of the plant "which would generate additional quantities of wastes which may be subject to current land ban restrictions." Rockwell's Memorandum at 8 (citing Merrick Aff. at para. 16). There is no indication, however, that plaintiff has recently requested the acting area manager to take this action.

 In addition, Rockwell claims to be in jeopardy because of the operation of a plutonium recovery incinerator without a permit. However, it also reports that operation of the incinerator is currently halted and Energy has agreed in a judicial stipulation not to restart the incinerator until such time as a permit is issued. Rockwell's Memorandum at 12 (citing Merrick Aff. at paras. 29-30). Obviously, whatever jeopardy may confront Rockwell on account of prospective incinerator ...

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