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Poett v. United States

September 29, 2009

JOSEPH POETT, PLAINTIFF,
v.
UNITED STATES OF AMERICA, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Colleen Kollar-kotelly United States District Judge

MEMORANDUM OPINION

Plaintiff, Joseph Poett, a chemist employed with the United States Department of Agriculture, brings the above-captioned lawsuit pursuant to the Administrative Procedures Act, 5 U.S.C. § 701 et seq. ("ADA"), seeking review of the decision by the Division of Select Agents and Toxins ("DSAT"), within the Centers for Disease Control and Prevention ("CDC") of the Department of Health and Human Services ("HHS"), to deny Plaintiff access to select agents and toxins within the course of his work as a chemist. According to Plaintiff, the decision is arbitrary and capricious as well as in violation of both his First Amendment right to free association and his Fifth Amendment right to due process. Plaintiff names as Defendants in this action the United States of America, the Attorney General of the United States, the Secretary of the United States Department of Agriculture, the United States Department of Agriculture, the Department of Health and Human Services, the Centers for Disease Control, and Robbin Weyant, Director of the DSAT.

Presently before the Court are the parties' cross-motions for summary judgment. Upon thorough consideration of the parties' submissions, including the attachments thereto, applicable case law, relevant statutory and regulatory authority, and the administrative record filed in this case, the Court shall remand this case to the Secretary for further explanation consistent with this Memorandum Opinion, and shall DENY WITHOUT PREJUDICE the Defendants' [24] and Plaintiff's [25] Motions for Summary Judgment, for the reasons set forth below.

I. BACKGROUND

A. Statutory and Regulatory Background

As part of the Public Health Security and Bioterrorism Preparedness and Response Act of 2002, Pub. L. 107-188, Title II, § 201(a) et seq., 116 Stat. 5974, 637 (hereinafter, the "Act"), Congress established a statutory scheme for enhancing controls on dangerous biological agents and toxins. Pursuant to the Act, the Secretary of HHS (hereinafter, the "Secretary"), has established "a list of each biological agent and each toxin that has the potential to pose a severe threat to public health and safety." 42 U.S.C. § 262a(a)(1)(A); see also 42 C.F.R. §§ 73.3 & 73.4 (listing select agents and toxins). Access to these select agents and toxins is limited "to only those individuals . . . determine[d] to have a legitimate need to handle or use such agents and toxins" and who have been reviewed by the Attorney General and approved by the Secretary. Id. § 262a(e)(2)(A); see also 42 C.F.R. § 73.10(a) ("an individual may not access a select agent or toxin, unless the individual is approved by the HHS Secretary . . . following a security risk assessment by the Attorney General").

In order to apply for access approval, "each individual must submit the information necessary to conduct a security risk assessment to the Attorney General." 42 C.F.R.§ 73.10(d); see also 42 U.S.C. § 262a(e)(3)(A). Upon receipt of this information, the Attorney General is required to "use criminal, immigration, national security, and other electronic databases that are available to the Federal Government" to determine whether the individual requesting access to the listed agents or toxins fall into one of the two following categories of individuals who may be disqualified from having access to select agents and toxins: (1) "restricted persons" and (2) "individuals [] reasonably suspected by any Federal law enforcement or intelligence agency" of certain enumerated acts or conditions. 42 U.S.C. §§ 262a(e)(3)(B)(i)& (ii); see also 42 C.F.R. §§ 73.10(f)&(g).

With respect to the first category, a "restricted person" is statutorily defined as an individual who is:

(A) is under indictment for a crime punishable by imprisonment for a term exceeding 1 year;

(B) has been convicted in any court of a crime punishable by imprisonment for a term exceeding 1 year;

(C) is a fugitive from justice;

(D) is an unlawful user of any controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802));

(E) is an alien illegally or unlawfully in the United States;

(F) has been adjudicated as a mental defective or has been committed to any mental institution;

(G)(i) is an alien (other than an alien lawfully admitted for permanent residence) who is a national of a country as to which the Secretary of State, . . . has made a determination (that remains in effect) that such country has repeatedly provided support for acts of international terrorism, or (ii) acts for or on behalf of, or operates subject to the direction or control of, a government or official of a country described in this subparagraph;

(H) has been discharged from the Armed Services of the United States under dishonorable conditions; or

(I) is a member of, acts for or on behalf of, or operates subject to the direction or control of, a terrorist organization as defined in section 212(a)(3)(B)(vi) of the Immigration and Nationality Act (8 U.S.C. 1182(a)(3)(B)(vi)).

18 U.S.C. § 157b(d)(2). If the Attorney General determines that an individual is a "restricted person," the Secretary is required to deny access to that individual. 42 U.S.C. § 262a(e)(2)(C); see also 42 C.F.R. § 73.10(g).

With respect to the second category, an individual applicant may be denied access if he or she is identified by the Attorney General as being "reasonably suspected by any Federal law enforcement agency or intelligence agency of:"

(I) committing a crime set forth in section 2332b(g)(5) of Title 18 [i.e., a Federal crime of terrorism];

(II) knowing involvement with an organization that engages in domestic or international terrorism (as defined in section 2331 Title 18) or with any other organization that engages in intentional crimes of violence; or

(III) being an agent of a foreign power (as defined in section 1801 of Title 50). 42 U.S.C. ยง 262a(e)(3)(b)(ii). If the Attorney General determines an individual is reasonably suspected of satisfying one of these three enumerated conditions, the Secretary, in consultation with the Attorney General, may "limit or deny access to agents and toxins, . . . if limiting or denying such access by the individuals involved is determined appropriate by the ...


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