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Seeger v. United States Department of Defense

United States District Court, District of Columbia

March 30, 2018

MATTHEW SEEGER, et al., Plaintiffs,



         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.

         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 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- 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 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 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 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 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 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.

         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.

         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]


         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 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 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 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 ...

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